DISCLOSE Shines a Bright Light on Corporate Expenditures but Leaves Political Activities in the Shadows


We couldn’t agree more with the name of the bill introduced today by Senator Schumer and Representatives Van Hollen and Castle:  Democracy Is Strengthened by Casting Light On Spending in Elections (the DISCLOSE Act).  The bill is the congressional response to address the flood of new corporate and union spending on elections unleashed by the Supreme Court when it decided Citizens United v. FEC.

Indeed, the bill does shine a powerful light on new spending and activities related to corporate political expenditures. Many of the provisions echo the recommendations Sunlight made shortly after the decision came down.  For example, the bill creates new stand-by-your ad provisions requiring the leaders of corporations, unions and other organizations to appear in their campaign ads and state they approve the message.  It goes even further towards uncovering the true power (and money) behind the ads by also requiring the top funder of an ad to make a stand-by-your-ad disclaimer and by requiring the top five donors to the organization that purchases the ads to be listed on the screen.

More details behind who funds those ads are also addressed by the bill’s requirement for new, comprehensive disclosure reports to be filed by corporations, labor unions, trade associations, and nonprofit advocacy groups whenever they make electioneering communications. When expenditures for those communications exceed $1000 and are made within 20 days of an election, the DISCLOSE Act mandates that the expenditures must be reported to the FEC within 24 hours.  The bill burrows deep to uncover the donors that make those expenditures possible.  At the same time, it provides important safeguards that give any donor to an organization that makes campaign expenditures the ability to prevent his name from being made public by opting to prevent his donation from being used for campaign-related purposes. A crucial caveat to the drafters of the bill:  This vitally important disclosure provision will be meaningless if the disclosures are not available online, at the FEC, almost immediately upon filing, in a machine-readable format.  The FEC will need guidance in the form of the strongest possible legislative language to ensure that it satisfies the requirement that the public can, in real time, view, read, analyze, download, sort and share the disclosure data.

When it comes to providing shareholders and members of organizations with information about political expenditures, the drafters did attempt to ensure real-time online disclosure. The bill requires that if an organization that makes political expenditures has an Internet site, the disclosure information must be “posted in a machine-readable, searchable, sortable, and downloadable manner and through a direct link from the homepage.” It is that kind of explicit language we expect to see with regard to all mandatory public disclosures in this or any legislation.

While the DISCLOSE Act shines a bright light on important details about corporate campaign expenditures, the light fades a to little more than a flicker when it comes to disclosing the information about the activities of members of Congress and lobbyists who attempt to influence them.

To get the whole picture of the intersection of money in politics behind these corporate and union campaign expenditures, we need to know at least two things and we need to know them in real time: First, while the bill rightly requires lobbyists and lobbying entities to disclose details about the electioneering expenditures they make, it should also require disclosure of the names of the officials who were lobbied. Current law does not require lobbyists to say they lobbied the office of Senator Smith.  Instead, lobbyists are only required to report that they lobbied the House, the Senate, or the executive branch.  But, without knowing who the lobbyist reached out to for a significant government action, there is no way for the public to know if there is a link between lobbying activities, the votes or other actions taken by a member of Congress, and when that member of Congress becomes the focus of corporate electioneering expenditures.

Second, the full impact of electioneering communications can only be understood when there is a clear picture of whether the subjects of these campaign ads—or their opponents—are also receiving campaign contributions from the leaders and employees of the entity that made the campaign ad. Candidates currently have to file their campaign finance reports quarterly, but that time frame allows far too much time to lapse before the public has access to campaign finance information. House and Senate candidates should, at the very least, be required to file their FEC reports on a monthly basis, as presidential candidates do.

On the topic of campaign finance reports, we would be remiss not to note that the DISCLOSE Act requires Senate candidates to electronically file those campaign reports with FEC rather than with the Secretary of the Senate. This is a common sense change to archaic Senate rules that Sunlight has been advocating almost since our founding.

Overall, Sunlight applauds the drafters of the DISCLOSE Act and believes that strongest possible disclosure bill must be enacted to mitigate the impact of the new money that will find its way into our elections in a post-Citizens United world.