DISCLOSE Opponents Fec Implementation Criticisms Unfounded

Trevor Potter
Jun 22, 2010

Misinformation about the DISCLOSE Act continues to be circulated by opponents of the bill. One criticism has been that the timetable would be too short for the Federal Election Commission (FEC) to implement the legislation. Doing so is not the Herculean task critics maintain.

Misinformation about the DISCLOSE Act continues to be circulated by opponents of the bill.  One criticism has been that the timetable would be too short for the Federal Election Commission (FEC) to implement the legislation.  Doing so is not the Herculean task critics maintain.

As we both know from our years on the FEC, the staff at the agency is up to the task if given the opportunity by the Commission.  Below are several points relevant to the FEC's role in implementing the DISCLOSE Act in a timely manner.

  1. Given the extent of the potential problem -- immediate and massive amounts of campaign messaging with no disclosure of who really is behind it -- there may be a need for more expedited procedures than sometimes are employed for new campaign finance laws.
  2. The real work to implement the new statutory provisions would be in creating the new reporting forms for electioneering communications and independent expenditures so that the proper definitions (as revised), and the new rules on reporting certain transfers being made, are incorporated in the instructions.  But the FEC staff could have those ready for Commissioner approval in a matter of two weeks or so.  The underlying rules are spelled out in the statutory language, and the FEC's Information Division could easily issue public notices about what the new statutory language says, and how this changes current law.
  3. The statute speaks for itself and is clear enough on almost all the basic points.  (The one area where the FEC's "plain English" Information Division staff could add helpful clarification is in the area of transfers to other groups that must be deemed electioneering communications.)  Unlike with McCain/Feingold, there are not many new, unique concepts that need to be clarified through regulations.  The law currently has electioneering communication and independent expenditure reporting, as well as disclaimer requirements.  The new tighter restrictions on some foreign-connected entities and entities with government contracts are very simple and easily understood without the need of expansive regulations.
  4. To the extent the Commissioners feel the need to provide clarification, or to the extent outside parties seek clarification from the Commissioners, the law currently allows for issuance of expedited informal guidance and/or advisory opinions.  A full-fledged rulemaking simply is not necessary should the Commissioners really want to give guidance in the short term.
  5. The approach of waiting for Commission regulations before the act takes place would leave the current Commissioners able to simply scuttle the law by failing to muster four  votes for approval.  There have been many examples over the last 4 years or so where the Commissioners have split along partisan lines, and on an issue like implementation of the DISCLOSE Act,  three  Commissioners should not be allowed to take this course, fueled by partisan preferences.

In short, the task of implementing the DISCLOSE Act for the 2010 election is hardly insurmountable as critics have implied.  The debate should remain on the merits of this legislation: will it allow voters to better know who is paying for the flurry of advertisements likely to besiege their television sets in the coming election.

Scott Thomas (Democratic FEC Commissioner 1986-2006)

Trevor Potter (Republican FEC Commissioner 1991-1995)

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