Re: [EL] more news 10/19/10 -DISCLOSURE

It is true that the FEC regulations which improperly (in my view) narrowed the McCain-Feingold disclosure provisions were adopted in 2007. However, even those new rules still require the disclosure of all persons making donations aggregating $1,000 or more "for the purpose of furthering electioneering communications."

It was Commissioner McGahn (with Commissioners Petersen and Hunter) who then narrowed this standard substantially further in their Statement of Reasons in Freedom's Watch (MUR 6002) in August of 2010, after Justice Kennedy had waxed eloquent in Citizens United about how corporate spending would be fully disclosed to shareholders and the public and reported on the internet for all to study. It was not disputed that donors (primarily one very wealthy one, apparently) gave funds to Freedom's Watch which were used to run electioneering communications. Indeed, it does not seem to be disputed that this principle donor, Mr.. Adelson, knew the funds would pay for electioneering communications: according to the Commissioner's Statement of Reasons, the New York Times article on the expenditures reported that "Sheldon Adelson was the primary financier of Freedom's Watch, and that Mr.. Adelson "insisted on parceling out his money project by project" and had "rejected almost all of the staff's proposals that have been brought to him." Nonetheless, the Commissioners held that "even if we assume the anonymous sources cited in the article are credible", there still would not be sufficient evidence that Mr.. Adelson gave funds to Freedom's Watch earmarked to fund the specific advertisement ("Family Taxes" ) which was the subject of the FEC filing.

Thus, the regulatory standard of funds "for the purpose of furthering electioneering communications" is transformed into the almost impossible to meet standard of funds earmarked for the purpose of funding the specific advertisement being reported (especially as most advertisements aren't even created until funding has been raised). And THIS high standard will never be met when three Commissioners, as in Freedom's Watch, refuse to even authorize a preliminary investigation of the circumstances, and find out what the donor knew or was told when he was solicited for the funding.

If it is any solace to Rick, the interpretation of the FEC regulations he mentions is one that predates Don McGahn.

The bigger question is whether there is a lack of disclosure. In fact, there is plenty of disclosure, and in fact all express advocacy ads and electioneering communications disclose who is paying for the ad and responsible for its content. What there is is a lack of disclosure to the extent that some people would like to see it.

Is Justice Kennedy to Blame for the Disclosure Problems in this Year's Election?

Joe Conason has written The Public Shaming of Anthony Kennedy for Salon, with the subhead: "He claimed that online technology would make corporate donations instantly transparent. Now we see how wrong he was."

I am no fan of Justice Kennedy's opinion in Citizens United. But Justice Kennedy has opened the door to transparency in campaign spending. The fault for the lack of disclosure falls to (in this order): (1) the Republican Commissioners on the FEC, led by Don McGahn, who have read current disclosure rules in the least-disclosure-friendly way possible; (2) Republican Senate moderates, especially Sens. Brown, Collins, and Snowe, who failed to buck their party and to support a disclosure-only law that could have at least lessened the transparency problems in this election, and (3) Senate Democrats, who larded up the DISCLOSE Act with controversial limits on corporate money in election in addition to the disclosure rules.

For more views of CU see the half-full and half-empty versions.