Campaign Transparency Efforts Continue in Congress and the FCC
by Lukas Autenried, 7/1/2014
Amid growing concerns about untracked spending on elections, two different efforts are underway to try to shed new light on this critical aspect of our democracy. First, Sen. Sheldon Whitehouse (D-RI) on June 24 reintroduced the DISCLOSE Act, which would require groups trying to influence elections to disclose their funding sources. Second, the July 1 reporting deadline for the Federal Communications Commission's (FCC) online political file rule has arrived. The rule requires broadcast television stations to post information online about political advertisements.
These moves are especially important in the wake of the U.S. Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission, which opened the floodgates for wealthy donors and corporations to channel unlimited funds through Super PACs. One result of the ruling has been a large spike in political advertising funded by unknown donors. The DISCLOSE Act and the FCC file rule would provide greater transparency, which can deter corruption and inappropriate influence. The data also provides voters with important information to evaluate political candidates.
The Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act was first introduced in 2010 as a direct response to the Citizens United ruling. The legislation would require any entity spending $10,000 or more on elections to publicly report to the Federal Election Commission (FEC). Those organizations, such as Super PACs, would also have to disclose the identity of any donor who gave $10,000 or more and list their top funders in their political ads. Additionally, the bill would prevent donors from using shell organizations to hide their contributions by requiring transfers of campaign funds to be disclosed.
The DISCLOSE Act responds to the fact that, even though the Supreme Court has weakened campaign finance rules in other ways, the Court has consistently upheld disclosure laws, including in its Citizens United ruling. Justice Anthony Kennedy, writing for the Court in that case, said, "Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." In 2010's Doe v. Reed, Justice Antonin Scalia echoed a similar thought in a concurrence, writing, "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."
Therefore, disclosure remains one sure way to help address the harmful effects of big money in politics. While Citizens United opened up new ways for corporations and wealthy donors to seek to influence elections, it failed to establish any new transparency to accompany the expanded spending. The DISCLOSE Act would ensure that the transparency standards that apply to traditional PACs and campaigns also apply to Super PACs.
The bill garnered a majority of votes in the Senate in both 2010 and 2012, but it failed to reach the requisite 60 votes needed to overcome a filibuster. Along with Whitehouse, the reintroduced DISCLOSE Act has 50 co-sponsors. The Senate is expected to vote on the legislation later this year.
FCC File Rule
In exchange for their right to transmit across public airwaves, licensed broadcasters are responsible for serving their communities and are subject to certain obligations established by Congress and the FCC. One of those requirements is to maintain a public file that provides certain information about programming and operations, including political ad buys.
While stations have traditionally maintained these files on paper, only available for the public to inspect in person, a recent modernization rule requires the files to be digitized and will soon come into full force. As of today, TV stations are required to post these public files to an online database maintained by the FCC and to link from their websites to their public inspection files.
Since 2012, stations affiliated with the top four networks broadcasting in the 50 largest market areas were required to post their files online. Now all licensed TV broadcasters will have to meet the same requirement and post their respective files. The rule should help shed greater light on the political advertisements purchased throughout the country by Super PACs and other third-party organizations. Since the Citizens United decision, political ad buying has skyrocketed, so the data should be revealing.
While the new rule is a positive step toward greater transparency, it does have limitations. The FCC has already experienced problems with compliance from stations currently subject to the rule. Some stations responsible to report for the first time may fall short of the requirements, as well.
Campaign Finance Reform as an Ongoing Effort
Campaign finance disclosure promotes more open and honest government. Providing the public with access to information about the flow of money in politics enables oversight and accountability by informing voters about potential influences on public officials. These efforts come while the Senate is also considering a constitutional amendment to put further campaign finance reforms on more solid footing. As part of the broader movement to curb the influence of money in politics, opening campaign finance to greater public scrutiny through policies such as the DISCLOSE Act and the new FCC file rule mark important milestones.