Two Former Federal Election Commission Chairmen on the DISCLOSE Act

Several groups that support the DISCLOSE Act, the Democratic campaign finance reform bill that is being pushed as a response to the Supreme Court's Citizens United decision, organized a conference call with reporters today on which two former chairman of the Federal Election Commission spoke out in favor of the bill.

The legislation seeks to impose stricter disclosure requirements on corporate spending. Under current FEC regulation, corporations are already required to disclose their independent campaign spending (e.g., to run ads, separate from donations to candidates), but the DISCLOSE Act requires CEOs, for instance, to make statements at the end of ads and disclose where the funding for the ad came from. Here's what they had to say on the call, hosted by the League of Women Voters of Maine, U.S. PIRG, the Campaign Legal Center, Public Citizen, and Democracy 21.

Trevor Potter, a former counsel for George H.W. Bush who chaired the Federal Election Commission from 1991-1995, is founding president of the Campaign Legal Center and an attorney for Caplin & Drysdale. He said:

The pressure that we're under, as a country, is that the Supreme Court's Citizens United decision announced last winter was effective immediately, so it covers all spending in this election year, and there have been people, Sen. Brown of Massachusetts recently, that he said he thought it was too much of a rush to try to do something to cover this election. Unfortunately the Supreme Court didn't really leave us a choice, because they covered this election in their decision for the first time in history allowing corporations and unions to spend unlimited funds in federal elections, so the point of the DISCLOSE Act is to know who is doing that spending, and current law has some significant holes in the disclosure fabric.

It is possible, as I think all of us are aware, to run ads that say something like, 'Paid for by Americans for a Better Country.' You have no idea who that is or who actually paid for those ads, even if you have a well known group like the Chamber of Commerce, so it says, 'Paid for by the Maine Chamber of Commerce,' they don't report publicly who their donors are or who specifically provided money that they're using for this ad, so that it is possible to have a lot of spending in elections with a vague or no idea of where that spending is coming from. The Supreme Court in the Citizens United case, interestingly, made it absolutely clear, there was an 8-1 vote, on the proposition that all of this election advertising can be disclosed--that the government may require the disclosure of the sources of funding in these ads, and Justice Kennedy, who had written the majority opinion saying corporations could spend this money and unions, specifically said that there was a real interest in not just citizens but also shareholders knowing how their money was being spent, and that such disclosure requirements were constitutionally permissible.

So we have a case here where we have a real urgent need, we have a Supreme Court decision that said as clearly as it could that it is constitutional to require such disclosure, and we have a partisan deadlock in Congress, the Republicans pretty much uniformly having decided that they would rather not have this sort of disclosure this year. As a Republican, obviously, that pains me, particularly because for years the opponents of campaign finance reform said, well all we needed was disclosure, and now that that's all we're going to get, they don't want us to have that either. So I have been urging Republicans to step forward. I know there are questions about portions of the bill, and the House bill is not perfect--no single piece of legislation ever is perfect--but what I'm hoping is that Republican senators who have long stood for reform will reach across the aisle and figure out with the Democratic leadership what needs to be done to make this a bill that they and ideally other Republicans can support.

Scott Thomas, a former staff attorney at the Federal Election Commission, served three terms as Federal Election Commission chairman from 1986-2006 and is now an attorney for Dickstein Shapiro. He said:

I think I can safely address the arguments about whether or not there should be some sort of slowdown in passage of this legislation or halting because it might be better if the FEC had a lot of time to implement this with regulations, and if the FEC were able to go through its normal process for putting up for comment draft regulations to implement the law. And my sense of it is, as Trevor Potter noted, this is a very special, unique set of circumstances. The Supreme Court sort of dumped on all of us this new Wild Wild West approach in campaign finance, unlimited corporation and union spending for independent messaging, and we just are in a position where there may be huge amounts of money spent and just totally inadequate disclosure about who's actually behind this, and that, just, to most of us doesn't seem like a healthy political system.

But I would say the Federal Election Commission would be obviously under some pressure to try to move quickly on those things it does have to do, but the reality is they don't really have to do anything that would be highly controversial at all. They would want to obviously implement some new forms to facilitate the new disclosure standards that are being set up for these independent expenditures and electioneering communications, but those substantive provisions are all very clearly laid out in the statutory changes. The level of detail is [all] there in the DISCLOSE Act. There wouldn't really be a need to add any sort of substantive interpretations, at least in the short term, and so I'm quite conf the commission could adopt some forms that would help with the disclosure implementation, and as to the other parts of the law that change some of the contribution restrictions for domestic subsidiaries of foreign corporations and so on, or that impose some new disclaimer requirements, again those standards are all very clearly built into this legislation. It's been carefully crafted to be precise and clear enough on its own, and so I'm confident the FEC could quickly get out the message to everybody that's out there in the regulated community, and it would be a kind of a piece of legislation that could basically start in operation right away, and I don't think there's really a need for holding things up simply on that kind of a concern.