[EL] Fwd: Q and A on DISCLOSE Act of 2012 Introduced by Senator Sheldon Whitehouse

[Beth Kingsley]

That certainly takes care of my extreme scenario. But the definition still seems to me over-broad, and likely to result in over-reporting. Conceptually I don’t understand why one would want or need to say that if X has made IEs or ECs, then any other transfers it makes are to be considered campaign-related.

In contrast, I understand why one would say that if the recipient has made a certain amount of such expenditures then future payments to that entity are considered campaign-related. I also think that is over broad, but the logic seems to be that when the recipient has that history, one can reasonably foresee that one’s payment could be used for such expenditures.  But I don’t follow the logic when this is applied to payments that would not otherwise be captured (so, no discussion between the parties about making campaign-related disbursements, and the transferor has no reason to know the recipient will make such disbursements in the future) solely because the transferor has made other disbursements that were for campaign purposes.

Beth

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Wednesday, March 28, 2012 12:07 AM
To: Beth Kingsley
Cc: law-election at uci.edu; Fred Wertheimer
Subject: Re: [EL] Fwd: Q and A on DISCLOSE Act of 2012 Introduced by Senator Sheldon Whitehouse

  As I now understand it (subject to further review), 501c3s are exempted from the expanded reporting requirements under the act and under  the "covered transfer" provisions.

On 3/27/12 11:27 AM, Beth Kingsley wrote:
I have a question about the current version of the DISCLOSE Act that I haven’t seen discussed.

I should start by admitting that I have not read the current legislative language, and only spent a little time with the recent version circulating in February. This definition is taken from a summary of the bill circulated by Democracy 21:

     A "campaign-related disbursement" includes (1) an independent expenditure, which is defined to include any public communication that contains express advocacy or the functional equivalent of express advocacy, (2) an electioneering communication, which is defined to include any broadcast ad which refers to a federal candidate and is broadcast anytime after January 1 of the election year (in the case of a congressional candidate), or in the period beginning 120 days prior to the first primary or caucus in any State until the date of the general election (in the case of a presidential candidate), or (3) a "covered transfer."

     A "covered transfer" is defined to include any transfer or payment of funds by a covered organization to another person if the transferor designates that the funds should be used for a campaign-related disbursement, if the transfer was made in response to a solicitation that the funds are to be used for a campaign-related disbursement, if there were discussions between the transferor and recipient about making a campaign-related disbursement, if the transferor or recipient had made campaign-related disbursements of $50,000 or more in the prior two years, or if the transferor had reason to know the recipient would make campaign-related disbursements of $50,000 or more in the next two years.

For much of this, whether I agree or disagree with the intent, I get how it works and what it is seeking to accomplish. However, defining a “covered transfer” as any transfer from one organization to another if either of them had made a “campaign-related disbursement” in the preceding two years seems to reach awfully broadly. If Organization X spends $25,000 on ECs or IEs in October 2012, and again spends that amount in early 2014, then any grant it makes or receives through October 2014 is treated as “campaign-related.”

Given the expanded window for the EC definition, it is entirely possible that perfectly nonpartisan 501(c)(3) lobbying messages that just say “tell your Congressional representative to vote no on HR whatever” could be captured. Are there exceptions for c3s? For restricted grants? I know I saw discussion elsewhere saying that a donor could avoid being disclosed by restricting their contribution, but does that also exempt it from the “covered transfer” definition?

Bottom line, this approach strikes me as being likely to lead to vast over-reporting and therefore a distorted perception of actual political spending, never mind any other consequences. What am I missing?

Beth

Elizabeth Kingsley
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Rick Hasen
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