Updating Disclosure for the New Era of Independent Spending

Abstract

One of the most striking developments in recent elections has been the upsurge in spending by independent committees, particularly Super PACs and 501(c) nonprofit corporations, that are not technically affiliated with specific candidates or parties but that frequently work to promote or oppose specific candidates or parties. In many elections, these committees are de facto surrogates for the candidates they are aiding. Although our disclosure laws are reasonably effective at obtaining the disclosure of the identities of donors to candidates and parties, they fail to provide effective disclosure of the identities of the donors to independent committees. The Citizens United decision indicates that expanding disclosure to address the surge is independent is primarily a technical and political one, not a constitutional one, as the Court has strongly endorsed the disclosure laws and their application to independent committees.

This article lays out a reform agenda for adapting our disclosure laws to this new era of independent spending. It addresses four issues: how to obtain the identities of the donors who contribute to organizations that engage in independent spending; how to define the election-related activity that triggers the duty to disclose; how to obtain the identities of the natural persons behind corporate contributions and expenditures; and how to assure that disclosure is made in a timely fashion.

In earlier work, I have suggested that we require too much disclosure of personal information concerning relatively small donors. However, we currently provide too little information about the donors who are financing the independent committees that loom increasingly large over our elections. Rightsizing disclosure to enable voters to understand the financial forces behind our candidates requires that we both raise the monetary thresholds for disclosure and extend the ambit of disclosure to include the donors who are paying for independent spending.