The court was divided 4-4.
By Ciara Torres-Spelliscy
A million people wrote the Securities and Exchange Commission (SEC) to bring transparency to political spending. I am one of those million.
I do not want my nation to be the United States of Amnesia.
I was reminded of what's at stake here, in our democracy, when NPR reported on the 25-year anniversary of the Tiananmen Square crackdown. A whole generation in China has no idea Tiananmen ever happened. That's not, primarily, because they were too young to have been there, but because it is official state policy to expunge the event from the historic record.
This collective forgetting has worked for the government in China. Ask young Chinese people about Tiananmen in 1989 and few can give a sensible answer about something that is never discussed. That's quite the feat in a connected world where big news events leave an indelible digital footprint. China can erase the historical record because of the totalitarian government's strict control over the flow of information.
Well that's China. In America it could never happen, right?
Not so fast.
Increasingly, the names of the people who are funding our privately financed elections are being erased from memory, or simply never recorded at all. Here the role of the state is mostly neglectful, not intentional as it is in China. But the effect is similar: people are naively uninformed about the powers that shape their government and their lives.
Two years later we still don't know the source of $315 million in political spending in the federal elections of 2012. Four years after the elections of 2010, $127 million in spending is still unaccounted for. In this year's elections the total is already over $50 million in dark money and election day is still two months away.
We should not let these huge sums remain hidden. And we don’t need Congress. Federal law surrounding disclosure is generally good (though there is always room for improvement like those fixes contained in the DISCLOSE Act), but transparency truly falls apart with weak implementation by federal agencies like the Internal Revenue Service (IRS), Federal Elections Commission (FEC) and SEC who are responsible for crafting rules and conducting enforcement.
Social welfare organizations, 501c4s, are a big source of dark money in elections. A properly funded and fully functioning IRS could police whether some faux 501c4s were really 527s, whose primary purpose is influencing elections, and ensure that all 527s are fully reporting their donors and expenditures as they are required to do under the Internal Revenue Code.
A less dysfunctional FEC could fix reporting in federal elections. Under the current reporting ruse, only earmarked spending sees the light of day. Instead, the FEC should require spenders to list each individual donor (over a base threshold) as required by the Federal Election Campaign Act and Bipartisan Campaign Reform Act.
A responsive SEC would require better reporting from public companies’ spending in politics. As of this month, approximately one million public comments have flooded the SEC echoing a petition by ten corporate law professors asking for more sunlight on corporate political spending. The SEC has the authority to implement and enforce this disclosure rule under the 1934 Securities Act. But the SEC has failed to even start the process.
A rare exception to bureaucratic lethargy on political transparency has been the Federal Communications Commission (FCC). The agency has implemented a new FCC rule that requires broadcasters to report political spending on ad buys online for the first time in history.
But even the FCC has been weak on follow through; letting broadcasters file nearly blank forms.
So far, they are at least moving in the right direction, and have even opened a new rule proposal to require cable and satellite channels to post ad buys online.
As Eliza Newlin Carney found when she compared the FEC and FCC reporting, it looked like there were two different elections going on – one secret and one on the books.
If the Center for Responsive Politics is right, America is on pace to have the darkest election in history in 2014.
Our amnesia problem is all the more embarrassing because it's happening at the very heart of our democracy.
The result of our lack of functional disclosure rules is the same as Chinese censorship. The public can't answer basic questions about a national election: Who paid for what? Who was the biggest spender in the election? And did money follow power or buck power?
We need to fix this. The SEC could change things overnight. It could go from last to head of the class by taking action.
A million people have asked the SEC to engage.
We don't want to be the twenty-year-old Chinese college student who doesn’t know her own nation’s history because it has been systematically hidden from view.
Our democracy deserves better than that.
Ciara Torres-Spelliscy is a Brennan Center Fellow and Associate Professor of Law at Stetson University College of Law. She is the author of “Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics.”
See her scholarship at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=584767