[EL] SEC Disclosure Rules

Fri Jan 22 09:11:22 PST 2016

Ciara Torres-Spelliscy writes in her piece the following:

But hasty drafting has left the SEC some wiggle room. Harvard Law Professor John Coates has examined the budget language and believes<http://www.citizen.org/documents/OpinionSigned.pdf> the SEC can still work on the rule this year as long as the agency does not finalize it. And given that rule making processes can be long affairs (think of all the long delayed Dodd-Frank and Jobs Act rules), it would behoove the SEC to start work on corporate disclosure rules now, especially since 94 members of Congress<http://www.menendez.senate.gov/imo/media/doc/Letter%20to%20SEC%20on%20omnibus%20provision%202015-12-22%20FINAL1.pdf> have urged them to move ahead.

So, the law says a governmental agency cannot do X. The governmental agency is then supposed to do X, but not finalize it. What is the purpose of this? Is it supposed to be some off-the-books rule that isn’t necessarily in place, but isn’t necessarily not in place either? How are those who are regulated supposed to behave in response to this? Are people supposed to just obey it? Or not? And if it is prohibited by statute, what is the purpose of spending taxpayer dollars on it and forcing regulated entities to go through the rulemaking process (with its attendant costs)?

And since when does 94 members of Congress mean anything? I thought the rule was that a majority of a quorum was necessary to pass legislation. Is there a “strongly-worded letter” exception to that?

What does this say about our rule of law? Why should anyone bother voting for a member of Congress if the federal bureaucracy, at the urging of a few members of Congress, can just ignore what the law says? Doesn’t this kind of undisclosed “dark legislation” breed cynicism, alienation from our government, and a belief that a person’s vote for their elected representative means nothing? Isn’t this “we-know-what-the-law-says-but-do-it-anyway” a “loophole” that could cause corruption? Isn’t this kind of cynical manipulation of our government by a few well-connected and well-financed groups and individuals exactly what the campaign finance laws are designed to prevent?

In other words, “Congressional handcuffs” means that the government can’t do it. Or at least it should.

Bill
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, January 21, 2016 8:42 PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 1/22/16

“As Jeb Bush Struggles, Some Allies Blame His ‘Super PAC’”<http://electionlawblog.org/?p=79203>
Posted on January 21, 2016 8:36 pm<http://electionlawblog.org/?p=79203> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<http://www.nytimes.com/2016/01/22/us/politics/jeb-bush-right-to-rise-super-pac.html?ref=politics&_r=0>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79203&title=%26%238220%3BAs%20Jeb%20Bush%20Struggles%2C%20Some%20Allies%20Blame%20His%20%E2%80%98Super%20PAC%E2%80%99%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Appeals Court Panel Overturns Van Hollen v. FEC, Reopening Massive Disclosure Loophole for 2016 Cycle “<http://electionlawblog.org/?p=79199>
Posted on January 21, 2016 8:26 pm<http://electionlawblog.org/?p=79199> by Rick Hasen<http://electionlawblog.org/?author=3>

CLC:<http://www.campaignlegalcenter.org/news/press-releases/appeals-court-panel-overturns-van-hollen-v-fec-reopening-massive-disclosure>

Today in Van Hollen v. FEC, the Court of Appeals for the D.C. Circuit once again upheld<http://www.campaignlegalcenter.org/sites/default/files/2016-01-21%20Opinion.pdf> an FEC rule that severely limits federal disclosure requirements connected to “electioneering communications.” The appellate panel overturned a district court decision holding the rule “arbitrary, capricious, and contrary to law” for improperly narrowing the scope of the McCain-Feingold law’s disclosure requirements and allowing nonprofit 501(c)(4) advocacy groups, 501(c)(6) business associations, and others to spend millions on “electioneering communications” without disclosing their donors.

The opinion is pretty hostile to reform (a terrible panel draw at the DC Circuit). The opinion concludes:

As our discussion of the FEC’s rule has shown, the Supreme Court’s campaign finance jurisprudence subsists, for now, on a fragile arrangement that treats speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents. But “the centre cannot hold.” William Butler Yeats, The Second Coming (1919). Until then, however, the FEC’s purpose requirement survives, and the judgment of the district court is therefore reversed.

I think van Hollen should try to go en banc on this one.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79199&title=%26%238220%3BAppeals%20Court%20Panel%20Overturns%20Van%20Hollen%20v.%20FEC%2C%20Reopening%20Massive%20Disclosure%20Loophole%20for%202016%20Cycle%20%26%238220%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“On Citizens United anniversary, Harry Reid picks a 6-year-old scab with John McCain”<http://electionlawblog.org/?p=79197>
Posted on January 21, 2016 8:24 pm<http://electionlawblog.org/?p=79197> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<https://www.washingtonpost.com/news/the-fix/wp/2016/01/21/why-is-harry-reid-going-after-john-mccain-on-the-senate-floor/>.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79197&title=%26%238220%3BOn%20Citizens%20United%20anniversary%2C%20Harry%20Reid%20picks%20a%206-year-old%20scab%20with%20John%20McCain%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
Posted on January 21, 2016 8:22 pm<http://electionlawblog.org/?p=79195> by Rick Hasen<http://electionlawblog.org/?author=3>

Kate Berry blogs<http://www.brennancenter.org/blog/juries-death-and-judicial-elections> at the Brennan Center.
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Posted in judicial elections<http://electionlawblog.org/?cat=19>
“How to End Super PACs, Once and for All: This proposal for Super PAC ‘insurance’ could work by deterring third-party spending.”<http://electionlawblog.org/?p=79193>
Posted on January 21, 2016 8:19 pm<http://electionlawblog.org/?p=79193> by Rick Hasen<http://electionlawblog.org/?author=3>

Read this Nick Warshaw blog post<http://www.washingtonmonthly.com/republic3-0/2016/01/how_to_end_super_pacs_once_and059351.php>, and if you want more info, check out the law review article<http://www.uclalawreview.org/forget-congress-reforming-campaign-finance-mutually-assured-destruction/>.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79193&title=%26%238220%3BHow%20to%20End%20Super%20PACs%2C%20Once%20and%20for%20All%3A%20This%20proposal%20for%20Super%20PAC%20%26%238216%3Binsurance%26%238217%3B%20could%20work%20by%20deterring%20third-party%20spending.%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“CLC Blog Update: Trevor Potter’s Remarks at The Brookings Institution Campaign Finance Solutions Summit”<http://electionlawblog.org/?p=79191>
Posted on January 21, 2016 8:18 pm<http://electionlawblog.org/?p=79191> by Rick Hasen<http://electionlawblog.org/?author=3>

Read the comments here.<http://www.campaignlegalcenter.org/news/blog/trevor-potters-remarks-brookings-institution-campaign-finance-solutions-summit>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Is ‘dark money’ boosting Bernie Sanders?”<http://electionlawblog.org/?p=79189>
Posted on January 21, 2016 8:04 pm<http://electionlawblog.org/?p=79189> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<http://www.publicintegrity.org/2016/01/21/19167/dark-money-boosting-bernie-sanders>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79189&title=%26%238220%3BIs%20%26%238216%3Bdark%20money%26%238217%3B%20boosting%20Bernie%20Sanders%3F%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“A Reform Agenda to Counter Big Money in American Politics”<http://electionlawblog.org/?p=79187>
Posted on January 21, 2016 8:03 pm<http://electionlawblog.org/?p=79187> by Rick Hasen<http://electionlawblog.org/?author=3>

The third Fred Wertheimer post<http://www.huffingtonpost.com/fred-wertheimer/a-reform-agenda-to-counte_b_9040154.html> on the sixth anniversary of Citizens United.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79187&title=%26%238220%3BA%20Reform%20Agenda%20to%20Counter%20Big%20Money%20in%20American%20Politics%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Legislative Vacancies: A Patchwork of Laws for Patching Holes in State Legislatures”<http://electionlawblog.org/?p=79185>
Posted on January 21, 2016 8:01 pm<http://electionlawblog.org/?p=79185> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the lead story in the latest issue of NCSL’s The Canvass<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-january-2016.aspx>.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79185&title=%26%238220%3BLegislative%20Vacancies%3A%20A%20Patchwork%20of%20Laws%20for%20Patching%20Holes%20in%20State%20Legislatures%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>
“Congressional Handcuffs Should Not Block SEC From Dark Money Work”<http://electionlawblog.org/?p=79183>
Posted on January 21, 2016 7:52 pm<http://electionlawblog.org/?p=79183> by Rick Hasen<http://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/congressional-handcuffs-should-not-block-sec-dark-money-work>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79183&title=%26%238220%3BCongressional%20Handcuffs%20Should%20Not%20Block%20SEC%20From%20Dark%20Money%20Work%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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