In the last six months, the disclosure rules covering the sources of money spent on elections have changed dramatically — twice. Despite those changes, one thing has stayed the same: moneyed interests have remained able to spend tens of millions of dollars on elections without having to publicly reveal who is doing the spending. In March, a federal court ruled that Federal Elections Commission disclosure regulations were too weak, in violation of Congress’s instructions to the agency. The court said that any group (or individual) that runs a type of advertisement called “electioneering communications” must publicly disclose the identities of its donors. These are the so-called “issue ads” run shortly before an election that mention a candidate but stop short of telling the audience to vote for or against the candidate. In response to the ruling, organizations switched to a different type of advertisement called “independent expenditures” — ads that expressly call for a viewer to vote for or against the targeted candidate. Prior to this ruling, many groups had avoided independent expenditures for tax reasons, but they were willing to face the tax consequences once it became the only way to hide their donors from the public.
Last month, a federal appeals court overturned the March ruling. The court also gave the FEC the chance to revise its regulations to ensure greater disclosure, but the commissionersdeadlocked, voting along party lines and leaving the old, weak regulations in place. Groups are once again free to run electioneering communications without having to disclose their donors. Sure enough, many organizations have turned back to electioneering communications.
One of the biggest spenders, Americans for Prosperity, announced it would switch to “issue ads” after the March ruling because, in the words of its president, Tim Phillips, “this election is too important.” Since early August, it spent $31 million on ads opposing Obama’s reelection.