[EL] The origins of [undisclosed spending that affects elections in some way, shape or form]?

[Craig Holman]

Stephen:


With BCRA's disclosure requirements, all groups -- including nonprofits -- disclosed their donors behind electioneering communications as well as independent expenditures. We had nearly 100% donor disclosure in 2004 and 2006.


The sensible state of affairs created by BCRA and affirmed by the Court lasted for onlyabout three-and-a-half years. In June 2007, the Supreme Court reversed the McConnell decisionin part in the Wisconsin Right to Life decision by allowing corporate and union money to finance electioneering communicationsif the ads were “issue oriented.” The Federal Election Commission (FEC), the agencycharged with implementing and enforcing the campaign finance law, responded later thatyear by exempting groups making electioneering communications from disclosing contributors’identities except in special cases in which donors specifically earmarked moneyfor that purpose. [11 C.F.R. § 104.20(c)(9).] 


Thus, corporations, trade associations and corporate-funded frontgroups could spend money from their treasuries without disclosing the sources of those funds as long as the donors did not specifically give money to finance electioneering advertisements. [Public Citizen 12 Months After (January 2011)] Since then, a similar "earmarking" requirement has been applied by outside groups to avoid disclosure of donors behind independent expenditures, which had not previously been the case.


Just before the 2010 elections, the three Republicans on the FEC issued a statement endorsingan even narrower interpretation of the disclosure rule. They opined that electioneeringgroups should only have to disclose those donors who specified that their money would beused for a specific ad, aired in a specific race. [Statement of Reasons for Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and DonaldF.McGahn, Freedom’s Watch, Inc., MUR 6002 (Aug. 13, 2010), available at:http://eqs.sdrdc.com/eqsdocsMUR/10044274536.pdf] 


When Ellen Weintraub, a Democratic commissioneron the agency who voted for the disclosure rule in 2007, read the Republicanstatement, she commented: “This is an unprecedented narrow reading of the regulation. It’scertainly not what I intended when I voted for that regulation.” [Robert Wechsler, “Ethical Officials and Disclosure Rules,” CityEthics.org (Sep. 16, 2010)]. Because few donors areapt to attach such specific instructions to their contributions, the effect of the subsequentFEC interpretations of the Wisconsin Right to Life decision has been to gut the donor disclosure requirement enshrined in BCRA, as well as the donor disclosure requirement that had long before existed for independent expenditures, and to serve as the principal cause of the creation of what we call today "dark money."




Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com



-----Original Message-----
From: Steve Klein <stephen.klein.esq at gmail.com>
To: Paul Blumenthal <paulblumenthal at huffingtonpost.com>
Cc: law-election at UCI.edu <law-election at uci.edu>
Sent: Tue, Nov 3, 2015 10:32 pm
Subject: Re: [EL] The origins of [undisclosed spending that affects elections in some way, shape or form]?



Indeed, but "The FEC responded by gutting a disclosure provision from the McCain-Feingold law that required groups to disclose their donors when reporting independent spending" doesn't  narrow it down for me, considering electioneering communications never--even in BCRA sans any regulatory interpretation--translated to PAC status.

Sent from my iPad

On Nov 3, 2015, at 8:21 PM, Paul Blumenthal <paulblumenthal at huffingtonpost.com> wrote:




The article goes further than that sentence.


On Tue, Nov 3, 2015 at 10:17 PM, Stephen Klein <stephen.klein.esq at gmail.com> wrote:


Paul Blumenthal writes:


"Further, corporations and unions can spend undisclosed 'dark money' on elections through nonprofit corporations, which are not subject to campaign finance disclosure laws due to a prior Supreme Court ruling and a Federal Election Commission rule change in 2007 that eliminated a key reporting requirement."


I assume, despite the evolving definitions of disclosure and undisclosed money that in some way, shape or form affects an election ("dark money"), he's referring to Buckley v.  Valeo as said "prior Supreme Court ruling" (I suppose listing the name or the more ominous "1976" that accompanies the ruling's citation might be too much for dear readers), but what 2007 rulemaking is at issue and how, exactly, did it affect Buckley's precedent? 


Sent from my iPhone


On Nov 3, 2015, at 5:46 PM, Rick Hasen <rhasen at law.uci.edu> wrote:


                            
“Anthony Kennedy’s Citizens United              Disclosure Salve ‘Not Working'”
                
          
Posted on November                3, 2015 8:08 am by Rick Hasen
        
            
        
Paul Blumenthal for HuffPo.






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Paul Blumenthal
Huffington Post
Twitter: PaulBlu | o: (202) 624-9384 | c: (202) 714-8545





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