COMMENTARY: Senate Democrats, led by Tom Udall, N.M., and Jeff Merkley, Ore., have introduced a package of campaign finance and lobbying reforms labeled the We The People Act.
Though unlikely to pass this current Congress, here’s a look at each proposal what these policies would mean for a more transparent and accountable government.
Exposing ‘dark money’ through greater disclosure
This provision, introduced by Sen. Sheldon Whitehouse, D-R.I., would require organizations spending money in elections to disclose their largest donors. Known as the “DISCLOSE Act,” the proposal would require these entities, including super PACs and 501(c)(4) nonprofits, to report those contributors that gave $10,000 or more during an election cycle. Candidate and party committees are not covered. Organizations would also have to report money that was transferred to other entities with the intention of being spent on campaigns.
The Sunlight Foundation has supported the DISCLOSE Act since it was first introduced in 2010.
Bring ‘real-time’ transparency to campaign contributions
Sen. Angus King, I-Maine, has proposed requiring federal candidates to report contributions of $1,000 to the Federal Election Commission (FEC) within 48 hours. The Sunlight Foundation has long supported real-time transparency. Currently, campaigns may take as long as three months to notify the FEC about contributions. Since Senate candidates are not required to file electronically, their information can take even longer to become public. These delays mean that voters must often go to the polls without knowing who has financially supported the candidates.
Reform the Federal Election Commission
Udall has proposed replacing the FEC with an independent elections agency, the Federal Elections Administration. The new entity would consist of five commissioners appointed by the president and confirmed by the Senate. It would receive more enforcement and investigation powers. In recent years, the FEC has nearly ground to a halt because of partisan deadlock. (For example, the commission was unable to investigate a case where a coal company owner was accused of coercing employees to make campaign contributions). And last year, the FEC issued the lowest amount of penalties for campaign finance violations since the current system began in 2001. This prevents the FEC from enforcing existing law, and from adapting to changes in the campaign finance landscape. The Sunlight Foundation has long supported measures to make the FEC a more effective body. Ultimately, a stronger FEC could resolve a lot of other issues, including disclosure of LLC spending as well as dark money. Even broader and more robust enforcement of the coordination rule which is supposed to keep super PACs independent from campaigns.
Rein in super PACs
Speaking of the coordination rule, Sen. Patrick Leahy, D-Vt., is offering a multi-item proposal that would greatly restrict single-candidate super PACs. Rules banning coordination between candidates and super PACs would be tightened. Leahy’s proposal would end the “firewall” that allows groups that are coordinating with a candidate to set up an internal unit that can spend independently. It would forbid candidates or their agents from establishing super PACs. Super PACs could not be directed by advisors or consultants of candidates, nor could they retain people who have provided professional services to candidates. Candidates or their agents could not raise funds for the super PAC. This provision would reinstate meaningful campaign contribution limits by keeping candidates from using super PACs to solicit unlimited sums from donors.
Expand registration requirements for lobbyists
Sen. Michael Bennet, D-Colo., has proposed requiring lobbyists to register if they make two or more lobbying contacts for a client over a two-year period, even if the lobbyist does not spend 20 percent of his or her time serving the particular client. The Sunlight Foundation has long been concerned with the problem of “shadow lobbying” – lobbying by people who do not register under federal law. Some estimates suggest there are about 10,000 “shadow lobbyists” in Washington.
Paid influencers avoid disclosure by choosing not to register — this allows them to avoid being covered by the 2007 law that banned lobbyists from making gifts to politicians and subjected them to additional campaign finance disclosure. They may wish also avoid registering in order to circumvent the Obama administration’s executive order restricting the hiring of lobbyists for executive-branch positions. Given that the Lobbying Disclosure Act has rarely been enforced, “shadow lobbyists” may see little incentive to register. But when lobbyists evade disclosure, citizens lose out, since they lack the information necessary to know who is trying to influence our government.
Permanent ban on lobbying by former members of Congress
Bennet has also proposed forbidding House and Senate members from lobbying Congress for the duration of their lives after they leave office. Currently, senators have a two-year ban, while representatives have one year. This proposal has a more potential pitfalls. A lifetime ban might threaten the First Amendment’s protection of the right to “petition for a redress of grievances.” It also might increase the numbers of “shadow lobbyists.”
Enhance “revolving door” restrictions
Sen. Tammy Baldwin, D-Wis., has proposed forbidding private employers from giving bonuses to their employees when they leave to enter government service. The bill would also increase “cool-down periods” for those leaving the federal government, and would expand recusal requirements for those in office. It would expand the prohibition on federal examiners from accepting employment with any financial institutions they oversaw from one year to two years.
Some have argued that this would reduce the federal government’s reliance on those who have worked in the industries that they would regulate in office. It could also make it less likely that former government officials use their government connections to benefit their new employers. Skeptics warn that this proposal might make it more difficult to attract talented and experienced people to government service.
Amend the U.S. Constitution to allow greater campaign finance regulation
Proposed by Udall, this amendment would overturn aspects of Buckley v. Valeo and Citizens United v. FEC by allowing both federal and state governments to set “reasonable” limits on campaign spending and contributions. It would specifically allow regulations to be based on concerns about political equality, which the Supreme Court has repeatedly rejected as a justification for limits on campaign contributions. The amendment would also specifically allow both federal and state governments to forbid corporations from spending money in elections. Constitutional amendments face a challenging path to adoption, needing two-thirds majorities in both houses of Congress, followed by approval by three-quarters of the states, many of which are under Republican control.
There are other means to enhance disclosure, many of which are included in the package. Skeptics of the amendment warn that by allowing only “reasonable” restrictions, it opens itself to widely varying interpretations by the courts. Given that the next president should be able to name at least one and probably more members of the Supreme Court, it is possible that Citizens United could be overturned or modified in the near future.
So, will this package even get a vote? Unlikely, as it is largely a tool for messaging by Democrats in highly politicized Congress. However, some of these proposals are serious and have merit; Sunlight will remain focused on these other proposals from Congress that boost transparency and accountability in our campaign finance system.
James Stephens contributed to this report.