The Campaign Legal Center filed this amicus brief on behalf of 14 nonprofit organizations (including the Sunlight Foundation) before the U.S. Supreme Court this past Friday. It concerns a challenge to part of the Citizens United decision that allows independent entities to raise and spend unlimited amounts of dark money to influence elections. The high court must decide whether to hear argument in a case involving the potential invalidation of a Montana law that limits corporate political expenditures, known as American Tradition Partnership, Inc. v. Bullock.

In our amicus brief, we challenge two assumptions made by the Supreme Court in its prior decision: that "independent expenditures" are actually independent, and that current disclosure laws are sufficient to deter corruption and avoid the appearance of corruption.

Three major arguments animate the brief. First, the current law's accommodation of close relationships between candidates and "independent" spenders could lead to corruptions and the appearance thereof. Second, current law facilitates efforts by corporations to deny shareholders and citizens the information necessary to hold corporations and elected officials accountable for their positions. And finally, that even when campaign finance information is disclosed, it is often done so in a way that is insufficiently timely and accessible to inform the electorate.

Supreme Court Amicus Brief American Tradition Partnership, Inc. v. Bullock

The House is voting today on the H.R. 3309, the FCC Reform Act. Rep. Eshoo is offering an important amendment that would require groups airing political ads to disclose contributors of $10,000 or more as a condition for purchasing ad time.

This is an important amendment that would help shine some light on the dark money that is being used to pay for campaign ads. It would not go as far comprehensive disclosures and disclaimers that would be required by the DISCLOSE Act, but would be a powerful first step toward greater transparency. The broadcast lobby will be working hard to defeat this amendment. We hope members of the House will ignore that pressure, and instead vote in favor of the amendment as one way to ensure the money, interests and influence behind political ads is not hidden in shadows

Senate Democrats unveiled their version of the DISCLOSE Act today. (We wrote about the House bill, introduced last month, here.) Senator Whitehouse was joined by approximately 35 of his Democratic colleagues on legislation that has been described as a pure disclosure and disclaimer bill, with none of the controversial provisions that caused the DISCLOSE Act to fail in the Senate by one vote in 2010. The Senate’s laser-like focus on disclosure and disclaimer provisions mirrors Sunlight’s recommendations in our draft Stop Undisclosed Payments in Elections from Ruining Public Accountability Act (the SUPERPAC Act). By focusing on disclosure and disclaimer provisions only, with no carve outs for select groups or bans on certain types of contributions, the 2012 version of the DISCLOSE leaves opponents of the previous bill with little or nothing to object to--unless they believe our elections should continue to be paid for by dark money.

Specifically, the bill will create robust reporting requirements for Super PACs, corporations, unions and nonprofit organizations that decide to make campaign expenditures. It will also require ads to contain disclaimers by the top officials of such groups, similar to the stand by your ad mandates required of candidates.

Voters have been bombarded with campaign ads largely paid for by outside groups, with much of that money totally undisclosed. The Supreme Court’s Citizens United decision, while touting the importance of disclosure, created a system in which money laundering could be used to funnel unlimited secret money into our political system. The DISCLOSE Act is a crucial step to address the corrupting influence of that money on our elections and our elected officials.

Senator Schumer has promised to hold a hearing on the bill in the Rules Committee next week. It will be interesting to see how his colleagues, including John McCain, Olympia Snowe, Lisa Murkowski and others who have expressed concern about the impact of the Citizens United decision, will react to this leaner version of DISCLOSE. We hope they recognize that the bill does nothing more, and nothing less, than lift the cloud that has been obscuring money in politics so that all citizens can know who is paying for our elections.

The New York Times looked at this week’s Super PAC filings with the FEC and demonstrated—again—what we knew would be the result of the Supreme Court’s Citizens United decision: The specter of hundreds of thousands of dollars of hidden money influencing our elections and those who will be elected.

The times notes that, “some checks came from sources obscured from public view, like a $250,000 contribution to a super PAC backing Mr. Romney from a company with a post office box for a headquarters and no known employees.” But, while the public remains in the dark, it would be naïve to think that the identity of the donor (or donors) of that generous contribution is unknown to Mr. Romney. So, what does he or she want? Favorable tax treatment? Fewer regulations for a pet industry? A bailout? An ambassadorship? It is possible that the money came from a generous citizen who simply believes Romney would be the best man for the job. But the system of secret dark money now in place means the voters will never know.

The Supreme court relied heavily on the theory that transparency would cleanse the unlimited money that would shape our elections as a result of their decision in the Citizens United case, noting, “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Unfortunately, the Court failed to realize that such a system of disclosure does not yet exist.

There is a solution. Sunlight proposed the SUPERPAC Act as one way to shine more light on the dark money infecting our elections. It would impose a regime of disclosure and disclaimers that would lift the veil of secrecy under which large donors may hide. But Congress needs to act. So far, we’ve heard talk. House Democrats say they will re-introduce a slightly paired down version of the DISCLOSE Act, a bill that failed to be enacted last year. And on the other side of the Capitol, Senator Schumer has promised hearings on disclosure by Super PACs.

These are important steps. (Although, arguably they should have happened well before the election season got under way.) Disclosure legislation is a critical tool in the fight against the undue influence secret money has on our campaigns and our elected officials. Unless Congress acts, we can be sure that we have only seen the tip of the dark money iceberg that is undermining the fundamentals of our democracy.

Today, the Federal Communications Commission voted to open a rulemaking calling for online disclosure of information that broadcasters collect about the political ads they air. If robust disclosure rules are put in place before the 2012 elections get into full swing, it will be a huge victory for the public, who has a right to know who is paying for the avalanche of political ads that will blast from their televisions in the months ahead.

Political advertising has an overwhelming impact on the election process. Making public information about who is paying for political ads, which candidates the ads support or oppose, where they are being run, and how much is being spent on them has always been in the public’s interest. In the post Citizens United era, where it is not only easy but commonplace to mislead the public about the source of dark money behind a political ad, such disclosure is even more important, and fully in-line with the Supreme Court’s embrace of transparency in that decision. If the FCC adopts a meaningful online disclosure system without delay, it will secure its leadership in using technology for information gathering and disclosure, setting an example for other agencies to follow.

A searchable FCC database of ad buys would not only enable the public to go directly to the FCC’s website to ascertain who is behind the nasty, misleading political ad that just interrupted their enjoyment of Dancing with the Stars, but would allow for re-use of the data and in-depth analysis by local journalists, scholars and others who could analyze whether the ad money being spent on races in Kansas is coming from New York, whether more money is being spent by outside groups than the candidates themselves, and where races are heating up as determined by spending.

Efforts to make information about political advertising more publicly accessible have been thwarted before, and certainly the National Association of Broadcasters is likely to object to rules that they will claim are burdensome. But that powerful special interest should not be given a free ride this time around. The public has a right to know the true source of the funding behind the political ads they see, and broadcasters across the country have an obligation not to be complicit in the conspiracy that keeps the public in the dark.

House Republicans, and more than a few Democrats, have taken a series of votes to kill a proposed executive order that would shine more light on dark money electioneering contributions made by recipients of government contracts.

The votes are remarkable for a number of reasons. First, there is no executive order. Opponents of disclosure are responding to a draft EO that was leaked to the press in April, resulting in an outcry from the Chamber of Commerce. The Chamber’s allies on Capitol Hill responded with amendments to the National Defense Authorization Act as well as three appropriations bills, (Homeland Security, Department of Defense and Energy and Water) that would prevent agencies from using their appropriations to implement “any rule, regulation or executive order” regarding the disclosure political contributions.

Even more remarkable is the looking glass way the lawmakers have turned transparency on its head, pretending that it would result in a “pay-to-play” system that would somehow advantage government contractors who contribute to Democrats.

One of the most important features of the draft EO is that it would require any entity bidding for a government contract to disclose contributions it made to third parties—like the Chamber or other shadowy nonprofit organizations—when those contributions are intended to pay for electioneering communications. Shining a light on this type of secret, dark money spending is a critical first step to restoring accountability to the political process.

But the Chamber has convinced a majority of the House that allowing voters to scrutinize who is paying for political ads will somehow corrupt the process of the awarding of government contracts. In fact, the opposite is true. The current opaque regime allows potential government contractors who want to garner favor with decision-makers in Congress or the executive branch to make secret campaign expenditures that only the decision-makers will know about. So pay-to-play, the alleged concern of those opposed to the EO, continues unabated and in secret.

The other canard opponents of the draft EO like to use is that the disclosure requirements are burdensome or unconstitutional. But the receipt of taxpayer dollars in the form of a federal contract always comes with conditions, including a variety of reporting requirements. Disclosure of contributions is no more burdensome than any other check imposed on potential contractors, and, as the Supreme Court noted, does not conflict with the first amendment.

Responsibility for making campaign expenditures transparent has been shunted to the White House by an activist Supreme Court that allowed dark money into our elections and an inactive Congress that has failed to shine a light on it. The House’s preemptive strikes against the EO should not derail the President’s efforts to ensure that there is transparency in the federal contracting process.

Norm Coleman has decided to join the cadre of former senators now employed as “senior advisers” for Washington lobby shops. We call his ilk non-lobbyist lobbyists. Tom Daschle is the poster child for this group of important influence peddlers in Washington who, due to a quirk in the law, don’t register as lobbyists or report their activities. Others include recent exiles from Congress such as Evan Bayh, Bob Bennett and Gordon Smith.

But what makes Coleman special is that in addition to his role as a non-lobbyist lobbyist, he is the chairman of the American Action Network, a 501(c)(4) group that shielded donors from disclosure while spending $20 million on electioneering ads during last year’s election.

As the chairman of AAN, Coleman knows who donated money to ad campaigns that favored conservative candidates. The public doesn’t. As a non-lobbyist lobbyist, Coleman knows whose interests he represents before Congress. The public doesn’t. He can encourage his corporate clients at his new firm to contribute to ANN. He can decide the political races in which ANN will run ads. He can let his former Senate colleagues know that, either as a favor or as a threat, AAN will spend heavily for or against their re-election campaigns.

Efforts to uncover dark money contributions to elections through legislation failed. Even a modest effort by the Obama administration to require disclosure of dark money by government contractors is being met with vigorous opposition by groups representing corporate donors.

Efforts to uncover more about lobbying activity have only just begun. (You can receive updates to Sunlight’s work on lobbying disclosure here.) The case of Norm Coleman illustrates that when hidden money collides with undisclosed influence a handful of moneyed interests enjoy the benefits while the rest of us are left in the dark.

During the 2010 midterm election David and Charles Koch, owners of the massive energy conglomerate Koch Industries, became the face of secret donors to a new set of political groups spawned by the controversial Citizens United Supreme Court ruling. Koch Industries is also a longtime government contractor receiving $85 million in contracts over the past eleven years. These two facts may not seem to overlap, but if President Obama signs a draft executive order leaked this week Koch Industries and a large number of the nation’s companies would face the prospect of having to disclose their now-secret contributions to political efforts when they seek new federal contracts.

The centerpiece of the draft order, which requires disclosure of a variety of contributions that are already disclosed to the Federal Election Commission, is its requirement that any organization bidding on a federal contract disclose contributions made by the organization, its subsidiaries, and its directors to any third party group intending on using that money for independent expenditures or electioneering communications.

The order specifically targets a disclosure loophole created by the Citizens United ruling. The ruling opened the door for a whole host of organizations, including 501(c)(4) nonprofit organizations, to run electoral advertisements without disclosing their donors to the public. The most notable of these groups is Crossroads GPS, a conservative nonprofit that spent more than $15 million on advertisements opposing Democratic candidates for office in the 2010 midterm election.

Under the order donations to Crossroads GPS and other groups including the U.S. Chamber of Commerce, and Americans for Prosperity would have to be disclosed by companies seeking federal contracts.

The order is an attempt by the White House to do what Congress could not do when it failed to pass a legislative response to Citizens United, known as the DISCLOSE Act, at the end of last year.

By applying to all organizations submitting a bid for contract the order would cover a huge swath of the country's companies. JPMorgan Chase, Exxon Mobil, General Electric, and the aforementioned Koch Industries all hold government contracts. Thirty-three of the forty-one companies listed in the top 100 campaign contributors over the past two decades are recipients of federal contracts. According to USASpending.gov, there are 129,083 recipients of federal contracts, although many of these may be duplicates.

Even News Corporation, the owner of Fox News, the Wall Street Journal, and the New York Post, is a government contractor. The executive order would require both the company and its owner Rupert Murdoch to disclose contributions to political groups. Last year News Corporation contributed $1 million to the Republican Governors Association, which already discloses its donors, and, according to a New York Times investigation, another $1 million to the U.S. Chamber of Commerce, which does not disclose its donors.

That Times investigation uncovered a number of contributors to the Chamber’s political efforts, most of whom also hold government contracts and would face new disclosure rules under the potential executive order. In addition to News Corporation, Dow Chemical, Aegon, Chevron Texaco, Prudential Financial, and Alpha Technologies all contributed to the Chamber of Commerce in recent years while holding government contracts.

While the order would certainly not apply retroactively these companies would have to disclose their political giving for the two previous years if they sought a new contract from the government.

House Oversight and Government Reform Chairman Darrell Issa, R-Calif., criticized the draft Executive Order for stifling speech and failing to cover unions that support the President and his party, “This order is a purely political act offered under the benign label of disclosure. The order would not impose the same requirements on the labor unions or other organizations who support the President.” While many unions receive federal grants there are few receiving federal contracts.

One notable exception is the nation’s largest federation of labor unions, the AFL-CIO, which received small contracts from the Department of Labor as recently as last year. USASpending.gov lists two purchase orders from 2010 for contracts with the AFL-CIO Working for America Institute. The contracts were with the Department of Labor and Department of Transportation. The draft order does not distinguish between types of contracts, thus any future contract with the AFL-CIO would trigger the same disclosure requirements applied to corporations with contracts.

Some companies already voluntarily disclose contributions to political groups on their corporate websites, although most of the time the information is dated, poorly defined, or not explained.

General Dynamics lists contributions to political nonprofits, but does not provide names. Instead, the defense contractor lists $125,000 in contributions to three 501(c)(4) nonprofits.

The top recipient of contract dollars from the federal government, Lockheed Martin, lists contributions it made to trade associations in 2010 including a $50,000 contribution to the U.S. Chamber of Commerce. Lockheed states, “We believe that the non-deductible portion of our dues is for trade association lobbying.”

Northrop Grumman and Raytheon Corporation detail their contributions to candidates and 527s, but do not explain a policy for contributions to other politically active organizations. Meanwhile, Pfizer releases an annual report on its political action committee contributions, which does not list contributions to nonprofits or trade associations.

Friday marks the one year anniversary of the Supreme Court's Citizens United decision giving corporations the right to make unlimited campaign ads—often without disclosing the donors who funded the ads. As a result of that decision, dark money spending to elect or defeat candidates in the 2010 midterms topped $450 million dollars, or about 15 percent of total spending on elections. But the spending is not over. An ironic result of the decision is that it requires the same groups that engaged in “electioneering communications” before Election Day to spend wildly on “issue ads” during the rest of the year.

Here’s how it works: Under IRS rules, a corporation that wants to hide the donors to its election activities and still maintain its tax-exempt status cannot have the election of candidates as its “primary purpose.” So it must spend more on “education” or issue ads than it spends on electioneering communications. That means, for example, that in order to keep its tax-exempt status, Karl Rove brainchild Crossroads GPS, which spent $17 million on campaign ads on the November elections, must now spend at least twice that on issue ads.

It has already begun. As my colleague Paul Blumenthal wrote here, Crossroads GPS recently spent $400,000 in twelve congressional districts, urging support for the extension of the Bush-era tax cuts. While ostensibly “educating” the public about the tax cut issue, the ads happened to be placed in districts held by Democrats who won their recent elections by the closest of margins. Is the group’s primary purpose “education” or “electioneering”? The line gets very blurry.

Make no mistake. Efforts to require groups to disclose who paid for their electioneering activities would not have required the disclosure of donors to issue advocacy campaigns. The Sunlight Foundation adamantly supports protecting the first amendment rights of groups to engage in true issue advocacy. But as a result of the Citizens United decision, special interests that directly impact elections with electioneering ads can augment their efforts by using issue ads to target vulnerable seats after the elections are over, all while disclosing nothing. Karl Rove and others taking advantage of the Citizens United case are most certainly celebrating the anniversary of the decision, probably by having cake. And eating it too.