Wyden and Murkowski have a bill to fight super PACs. Does it go far enough?

April 27, 2013

Ron Wyden, center, has yet another bipartisan piece of legislation. Will it work? (Harry Hamburg/AP)

As Ezra noted in his profile of Oregon's senior Senator, Ron Wyden's staff have a funny-cos-it's-true joke about their boss. “You got a problem?” they say to one another. “Ron Wyden has a comprehensive, bipartisan solution to fix it.”

Well, independent campaign spending by super-PACs is, arguably, a problem. And Wyden now has a comprehensive, bipartisan solution to fix it.

It's called the Follow the Money Act of 2013, and with Sen. Lisa Murkowski (R-Alaska) signed on as a co-sponsor, it's the first bipartisan piece of Senate legislation to address the growth of super-PACs in the 2010 and 2012 elections. The Sunlight Foundation estimates that super-PACs raised about $840 million in the 2012 election cycle, and spent $630 million of that. So far the legislative response has focused on Rep. Chris van Hollen's (D-MD) DISCLOSE Act, which requires super-PACs and other independent spenders to notify the FEC within 24 hours of an ad buy, to disclose major corporate donors in advertisements, and for corporations to share with shareholders any corporate spending, among other requirements. However, that failed due to the filibuster back in 2010, with no Republicans voting in favor.

What sets the Wyden-Murkowski bill apart? A number of features look familiar to DISCLOSE. The funder and top three donors behind independent expenditure ads will have to disclose their names in the ads they put out. Businesses will not be able to deduct campaign spending for tax purposes. But there are some key differences. Currently, all individual donations above $200 have to be disclosed. The bill would raise that number to $1,000. Most consequentially, the bill requires the FEC to set up a real-time reporting system for independent groups and candidates. Instead of finding out how much Ron Wyden raised for his reelection campaign, and from whom, at the end of every quarter, voters would know the second the donation is made.

That's a big change, and one which both makes donations more conspicuous and increases the amount of information candidates have about their opponents in the course of a campaign. What's more, it's an expansion of what's in van Hollen and Sen. Sheldon Whitehouse's (D-RI) updated version of the DISCLOSE Act. Those require real-time disclosure of independent spending (the FEC has to put spending records online within 48 hours), but not spending by candidate committees. In that way, Wyden-Murkowski is arguably stronger (Whitehouse's office says they're in the process of updating the bill for this session of Congress, so the gaps between them could narrow).

"We're extremely pleased to see their leadership in looking at new and innovative ideas for tackling disclosure," Karen Hobert Flynn, a senior VP at Common Cause, tells me.


Sen. Sheldon Whitehouse, whose bill some advocates think is a stronger response to super-PACs than Wyden's. (Getty Images)

But other advocates argue it doesn't do quite what's necessary. Fred Wertheimer, who runs Democracy 21 and is among DC's most respected campaign finance reform advocates, notes that while Whitehouse and van Hollen's bill impose bright-line tests for seeing if something's an independent expenditure, the Wyden-Murkowski bill gives a lot of discretion to the Federal Election Commission in determining who's bound by the bill's dictates. "The FEC is a completely dysfunctional agency that repeatedly refuses to properly interpret and enforce the laws," he says. "So to the extent that you wanted to rely on an agency to decide these questions, the FEC is a failed agency and cannot do the job."

Wertheimer is comparatively more enthusiastic about the Whitehouse legislation. "They do draw the line in the right place, and they'll capture almost all of the disclosure that was evaded in the last election," he says.

Still, Wertheimer's clear he thinks the bill's very existence is encouraging. "It's the first bipartisan disclosure legislation and in particular Senator Murkowski deserves a lot of recognition for becoming the first Republican senator to formally support disclosure legislation in the senate," he says. "But I still think the general approach in the Whitehouse disclosure legislation is necessary in order to get the disclosure that's needed here."

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Ezra Klein · April 27, 2013