The U.S. Court of Appeals for the District of Columbia District heard arguments Friday on an appeal in the Van Hollen v. Federal Election Commission case. A district judge ruled in March that outside groups engaging in signficant “electioneering communications” — ads run near federal elections that mention candidates but do not explicitly tell viewers to elect or defeat them — must disclose the donors funding their efforts. The impact of this ruling is limited, because most groups have exploited a loophole allowing them to circumvent the rules. Nevertheless, one group impacted by this decision has thus far failed to identify its big-money donors.

After years of failing to enforce disclosure rules mandated by the Bipartisan Campaign Reform Act (commonly known as McCain-Feingold), Rep. Chris Van Hollen (D-MD) successfully sued the Federal Election Commission, demanding that it do so. The FEC said in July that it would enforce the ruling, retroactive to the date it was issued. Until such time as a court overturns the ruling, the Commission ordered, all reports of electioneering communications made from March 30, 2012-onward would need to include disclosure of all donors to the group who contributed $1,000 or more. As ThinkProgress reported, that meant just one group would have to amend its earlier filings to name its donors: Freedom Path. An officer for that Utah-based 501(c)(4) committee, which spent thousands of dollars on ads praising Sen. Orrin Hatch (R-UT) and Mitt Romney, told ThinkProgress at the time that his group would have to consult with their legal counsel before making a statement on whether it intends to comply with the new rule.

Six weeks later, Freedom Path has not yet amended its reports. The Federal Election Commission’s report analysis division has not contacted the group to ask for additional information. The Commission has taken no enforcement action against Freedom Path to date, though it does not make ongoing enforcement investigations public. As a result, voters cannot determine who was truly speaking in the group’s advertising, even though this disclosure is currently required by law. Freedom Path did not respond to multiple emails and phone messages asking for comment.

Just one group — Mayors Against Illegal Guns Action Fund — has reported a new electioneering communication expenditure since the FEC’s July order. It did identify its donors in its filings.

Paul S. Ryan, senior counsel at the Campaign Legal Center, told ThinkProgress that any group that’s making significant electioneering communications is “required by law to disclose their donors. All groups should be doing so… It’s important [and] the FEC needs to enforce that law.”

But, he added, “Equally as troubling, or perhaps even more troubling, is the fact that many [501](c)(4)s are now playing a game of inserting very brief mention of express candidate advocacy at the end of their ads seemingly for the purpose of avoiding donor disclosure… They game the system and maintain the anonymity our deep pocketed donors by simply inserting a few words at the end of the ad, where they’re barely noticeable.”

The DISCLOSE Act — which would have required donor disclosure for those more overt “independent expenditures” allowed by the controversial Citizens United ruling — was blocked by Senate Republicans in July, on two party-line votes.

The Republican National Convention Tuesday adopted a party platform that embraces the highly unpopular Citizens United ruling, opposes meaningful campaign finance disclosure, and actually calls for allowing donors to give more money to politicians.

In a section entitled “The First Amendment: Speech that is Protected” the platform states:

The rights of citizenship do not stop at the ballot box. They include the free speech right to devote one’s resources to whatever cause or candidate one supports. We oppose any restrictions or conditions that would discourage Americans from exercising their constitutional right to enter the political fray or limit their commitment to their ideals. As a result, we support repeal of the remaining sections of McCain- Feingold, support either raising or repealing contribution limits, and oppose passage of the DISCLOSE Act or any similar legislation designed to vitiate the Supreme Court’s recent decisions protecting political speech in Wisconsin Right to Life v. Federal Election Commission and Citizens United v. Federal Election Commission.

The Supreme Court has consistently held that free speech does not mean one can give as much as he or she wants to political candidates. Even in his 5-4 Citizens United majority opinion, Justice Anthony Kennedy acknowledged that the Buckley v. Valeo ruling found that unlimited contributions directly to a political candidate can “give rise to corruption or the appearance of corruption.”

In the same opinion, Kennedy wrote that disclosure “is the less-restrictive alternative to more comprehensive speech regulations.” But by opposing the DISCLOSE Act and other efforts to disclose who pays for independent expenditures, the GOP is endorsing a system in which voters cannot determine and evaluate who pays for political speech.

With groups like Karl Rove’s Crossroads GPS, the Koch Brothers’ Americans for Prosperity, and the U.S. Chamber of Commerce spending millions on ads attacking Democrats without disclosing any of their donors, it is no wonder that the Republicans are embracing the status quo.

Three quarters of Americans believing there is too much money in politics. The Republican delegates are apparently among the only people in the country who think things would be better with more of it.

A day after 43 Senate Republicans unanimously voted to block the DISCLOSE Act from receiving an up-or-down vote, Democrats will try again for cloture at 3pm on Tuesday.

The measure, which lawmakers drafted in response to the Supreme Court’s 2010 Citizens United ruling, “would require independent groups to disclose the names of contributors who give more than $10,000 to independent groups for use in political campaigns.” Here is what you should know about the measure:

1) It’s all about disclosure. The bill’s sole purpose would be to require outside groups who can currently spend unlimited sums of money on “independent expenditure” ads attacking and supporting presidential and other candidates to identify who is paying for the ads. Under current law, a 501(c)(4) tax-exempt group like Karl Rove’s Crossroads GPS can spend millions of dollars on attack ads without citizens ever knowing who is paying for them. Under the DISCLOSE Act, if a group spends more than $10,000 on political ads in an election cycle, it would have to identify the donors funding the efforts.

2) The Supreme Court backed disclosure. In his 5-4 majority opinion in the Citzens United v. FEC case, Justice Anthony Kennedy wrote “disclosure is a less restrictive alternative to more comprehensive regulations of speech.” By an 8-1 majority, every Justice but Clarence Thomas agreed that Congress had acted properly when it required that donors be identified for political ads that do not expressly advocate for or against a candidate. But, while these indirect ads come with disclosure, Congress did not anticipate that Citizens United would allow outside groups’s ads to directly tell voters to support or oppose candidates, leaving a major loophole.

3) Republicans used to support disclosure. When Congress considered the McCain-Feingold campaign finance reform law in the early 2000s, opponents consistently argued that complete disclosure, rather than regulation, was the best campaign finance law. Senate Republican Leader Mitch McConnell (R-KY), who now dismisses disclosure as government-supported “harassment and intimidation,” once endorsed the concept and asked “why would a little disclosure be better than a lot of disclosure?” Fourteen current Senate Republicans who now oppose the DISCLOSE Act voted in 2000 for similar disclosure for 527 committees, the forerunner to these 501(c)(4) outside spending groups. And even Sen. John McCain (R-AZ), who this March warned the lack of disclosure for independent spending would lead to “huge scandals” still joined with the Republicans to stop the bill in 2010 and yesterday.

4) Republicans are moving the goal posts on disclosure. The 2010 version of the bill included an array of provisions aimed at mitigating problems created by Citizens United, including restrictions on foreign-owned corporations’ ads and government contractors. Republicans like McConnell criticized that version as “117 pages of stealth negotiations in which Democrats pick winners and losers, either through outright prohibitions or restrictions so complex that they end up achieving the same result.” This year, sponsor Sen. Sheldon Whitehouse (D-RI) is offering just a 20-page bill that contains solely the disclosure provisions, in hopes that Republicans would be more open to supporting it. None have.

In a letter opposing the DISCLOSE Act of 2012 — a bill to allow citizens to know what corporations and wealthy donors are paying for the “independent expenditure” attack ads enabled by the 5-4 Citizens United ruling — the National Rifle Association (NRA) is warning Senators it will score the issue in its legislative scorecard for this Congress.

The NRA opposes the measure — arguing that its “provisions require organizations to turn membership and donor lists over to the government” and would unconstitutionally abridge the right of citizens “to speak and associate privately and anonymously.” The legislation would merely require groups that opt to run outside political ads to tell voters which donors funded those efforts. By setting up a separate bank account for independent political spending, a group like the NRA would be able to keep its membership list private and would need only disclose the large money donors paying for the group’s campaign ads. Far from being unconstitutional, this sort of disclosure was explicitly endorsed in Justice Anthony Kennedy’s Citizens United majority opinion as “the less-restrictive alternative to more comprehensive speech regulations.”

In 2010, after supporters of the DISCLOSE Act agreed to exempt just the NRA from the bill, the group dropped its opposition. Now, without those special protections in the 2012 version, the group is taking no chances and is issuing a strong message to any Senator who might support political transparency. The NRA letter warns:

Due to the importance of the fundamental speech and associational rights of the National Rifle Association’s four million members, and considering the blatant attack on those rights that S. 3369 represents, we strongly oppose the DISCLOSE Act and will consider votes on this legislation in future candidate evaluations.

In other words, vulnerable Senators facing re-election may face secret-money attack ads should they back transparency for secret money attack ads.
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