April 24, 2019

Whitehouse, Blumenthal, Tester File Brief in Major Campaign Finance Challenge

As anonymous funding floods federal elections, senators call for DC Circuit to uphold key donor disclosure law

Washington, DC – Senators Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), and Jon Tester (D-MT) filed a brief with the U.S. Court of Appeals for the District of Columbia today in a major campaign finance dispute.  The case involves a federal law requiring disclosure of donors to groups spending to influence federal elections.  Based on their firsthand knowledge of special interest influence in Congress, the senators argue that unlimited anonymous spending in federal elections has a deeply corrosive effect on American democracy.  If left unchecked, the billions of anonymous dollars will drown out the voices of the American public and erode citizens’ belief in the fairness of their elections and elected leaders, the senators point out.

Americans are very clear about what is ailing our democracy,” Whitehouse, Blumenthal, and Tester write.  “Unconstrained campaign spending has given a small set of influencers a disproportionate voice in American politics, distorting political outcomes and causing millions of ordinary Americans to lose faith in their government.  This widespread lack of confidence in our country’s governing institutions should be a matter of concern to the Court.”

Crossroads GPS v. CREW is a case centered on a Federal Election Commission (FEC) regulation that has allowed nonprofit groups that are unaffiliated with candidate campaigns and that spend money to influence elections to hide the identity of their funders.  CREW, a good government watchdog, challenged the FEC regulation on grounds that it failed to meet the Federal Election Campaign Act’s clear requirement that such groups disclose their donors.  A federal district court ruled in favor of CREW last year and the Supreme Court denied the request of CREW’s opponent, conservative outside spending group Crossroads GPS, to stay the lower court’s ruling.  Crossroads GPS has appealed to the DC Circuit.

In their brief, the senators describe what they have observed in federal elections following the Supreme Court’s disastrous Citizens United decision, as a result of which wealthy corporate and elite interests spend, and can threaten to spend, on federal elections in unprecedented amounts. 

Citizens United presumed that a regime of ‘effective disclosure’ would ‘provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters,” the senators write.  “That presumption of ‘effective disclosure’ irreconcilably conflicts with the spending secrecy fomented by the FEC’s failure to require adequate outside spending disclosures.  Among the collateral harms of unlimited spending, worsened by unlimited secret spending, are the justifiable perception that politicians are beholden to the donor class rather than to their constituents, and the problem of private threats and promises.  Unlimited secret election spending creates added potential for actual corruption and denies the voting public a true understanding of who and what is at work in their democracy.” 

The senators continue, “The fundamental purposes of disclosure are to guard against corruption and to help voters make informed choices.  By allowing millions of dollars to be spent anonymously to influence elections and candidates, the FEC’s improperly narrow regulation fails at both goals.

As the senators note, outside groups organized under section 501(c)(4) of the Internal Revenue Code and other similar organizations have sunk nearly $4 billion into the U.S. election system since the Supreme Court’s 2010 Citizens United decision. 

Read the senators’ full brief here.


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