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Sheldon W.
Democrat RI

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  • Statements on Introduced Bills and Joint Resolutions

    by Senator Sheldon Whitehouse

    Posted on 2015-01-21

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    WHITEHOUSE (for himself, Mr. Udall, Ms. Warren, Mr. Carper, Mr. Coons, Mr. Markey, Mr. Leahy, Mr. Durbin, Mrs. Murray, Mr. Bennet, Mrs. Boxer, Ms. Hirono, Mrs. Gillibrand, Mrs. Shaheen, Mr. Cardin, Ms. Stabenow, Mr. Merkley, Ms. Baldwin, Mr. Murphy, Mr. Nelson, Mr. Casey, Mr. Brown, Mr. Reed, Ms. Heitkamp, Mr. Manchin, Mrs. McCaskill, Mr. Warner, Mr. Franken, Mr. Sanders, Mr. Menendez, Mr. Heinrich, Mr. Tester, Mr. Schumer, Mr. Kaine, Ms. Klobuchar, Ms. Mikulski, Mr. King, Mr. Blumenthal, Mrs. Feinstein, Mr. Booker, and Mr. Peters).



    S. 229. A bill to amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities, and for other purposes; to the Committee on Rules and Administration.

    Mr. WHITEHOUSE. Mr. President, I rise today to introduce the DISCLOSE Act of 2015.

    Simply put, this bill would end the massive undisclosed spending in elections that is undermining public faith in our democracy, creating what one newspaper called ``a tsunami of slime.'' Today marks the 5-year anniversary of the Supreme Court's disastrous 5-4 decision in Citizens United v. FEC. With that feat of judicial activism, which will likely go down with Lochner v. New York as one of the Supreme Court's worst decisions, the conservative bloc of the Supreme Court overturned the laws of Congress protecting our elections' integrity, thwarted the will of the American people, and allowed unlimited anonymous corporate money to flood into our elections.

    Worse still, even though the justices decided 8-1 that laws promoting disclosure of outside spending were necessary and appropriate, everything that has happened since has shown a concerted effort to prevent and frustrate disclosure. So the billionaires and corporations spending tens and even hundreds of millions of dollars on elections can continue to do so with no public knowledge and no accountability.

    The Citizens United decision hangs on a series of irretrievably flawed assertions. Among them is the premise that unlimited corporate expenditures would be fine because there would be a regime of ``effective disclosure'' that would ``provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.'' However, following Citizens United, that regime of ``effective disclosure'' has completely broken down, with billionaires and corporations spending unlimited secret money in elections. In the 2014 elections, the most expensive midterm elections in our history, with over $3.6 billion spent, the Washington Post reported that at least 31 percent of all independent spending was spent by groups that are not required to disclose their donors. And that doesn't even count spending on so-called ``issue ads,'' which is also not reported.

    The first line of defense for campaign finance laws is supposed to be the Federal Election Commission. However, 5 years after the fact, the FEC just held a public meeting to consider rules to implement the Court's decision in Citizens United, and incredibly, the commissioners did not even consider rules to require disclosure.

    That has left the problem largely to the Internal Revenue Service, because so many of the offending organizations are non-profits. And they mangled this. First, they failed to investigate big non-profit groups spending hundreds of millions of dollars on elections making what appeared to be illegal, material [[Page S350]] false statements about election spending on these IRS forms. Then the IRS singled out organizations for scrutiny based on words in their names suggesting that they were politically active. Recently, the Treasury Department and the IRS proposed new rules to require disclosure by 501(c)(4) groups. Along with fifteen of my colleagues, I commended the effort to ensure disclosure by these non-profits. However, the IRS withdrew the proposed rules, and the latest reporting says that new rules won't be ready for the 2016 elections, another failure of disclosure.

    The DISCLOSE Act would put some transparency into the ``tsunami of slime.'' The bill, which is unchanged from the version introduced last Congress, would require organizations spending money in elections-- including super PACS and tax-exempt 501(c)(4) groups--to promptly disclose donors who have given $10,000 or more during an election cycle. The bill includes robust transfer provisions to prevent political operatives from using complex webs of entities to game the system and hide donor identities. This is not a new idea. Many Republicans, including several in the Senate, used to support disclosure.

    Senator Alexander has said, ``I support campaign finance reform, but to me that means individual contributions, free speech, and full disclosure.'' ``I don't like it when a large source of money is out there funding ads and is unaccountable,'' said Senator Sessions. ``To the extent we can, I tend to favor disclosure.'' Or as Senator Cornyn put it, ``I think the system needs more transparency, so people can more easily reach their own conclusions.'' Senator McConnell once summed it up nicely: ``Virtually everybody in the Senate is in favor of enhanced disclosure, greater disclosure. That's really hardly a controversial subject.'' And he was right--until Citizens United. Suddenly Republicans are fighting to keep the American people in the dark to protect their wealthy funders.

    The high disclosure threshold and other provisions in the bill protect membership organizations from having to disclose their member lists, and from having to disclose any donor who does not wish his or her contribution to be used for political purposes.

    Our campaign finance system is broken. Immediate action is required to fix it. Americans of all political stripes are disgusted by the influence of unlimited, anonymous corporate cash in our elections, and by campaigns that succeed or fail depending on how many billionaires the candidates have in their pockets.

    Passing this law would remove the dark cloud of unlimited, anonymous money from our elections, and would prove to the American people that Congress is committed to fairness, equality, and the fundamental principle of a government ``of the people, by the people, and for the people.'' As Republican former Federal Election Commission Chairman Trevor Potter has said, the DISCLOSE Act is ``appropriately targeted, narrowly tailored, clearly constitutional and desperately needed.'' I thank our 35 cosponsors of this bill so far, and Representative Van Hollen for introducing in the House, and I urge my colleagues to support the DISCLOSE Act of 2015.

    Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

    There being no objection, the text of the bill was ordered to be printed in the Record, as follows: S. 229 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2015'' or the ``DISCLOSE Act of 2015''.

    SEC. 2. CAMPAIGN DISBURSEMENT REPORTING.

    (a) Information Required To Be Reported.-- (1) Treatment of functional equivalent of express advocacy as independent expenditure.--Subparagraph (A) of section 301(17) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(17)) is amended to read as follows: ``(A) that expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because, when taken as a whole, it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions a candidacy, a political party, or a challenger to a candidate, or takes a position on a candidate's character, qualifications, or fitness for office; and''.

    (2) Expansion of period during which communications are treated as electioneering communications.--Section 304(f)(3)(A)(i) of such Act (52 U.S.C. 30104(f)(3)(A)(i)) is amended-- (A) by redesignating subclause (III) as subclause (IV); and (B) by striking subclause (II) and inserting the following: ``(II) in the case of a communication which refers to a candidate for an office other than the President or Vice President, is made during the period beginning on January 1 of the calendar year in which a general or runoff election is held and ending on the date of the general or runoff election (or in the case of a special election, during the period beginning on the date on which the announcement with respect to such election is made and ending on the date of the special election); ``(III) in the case of a communication which refers to a candidate for the office of President or Vice President, is made in any State during the period beginning 120 days before the first primary election, caucus, or preference election held for the selection of delegates to a national nominating convention of a political party is held in any State (or, if no such election or caucus is held in any State, the first convention or caucus of a political party which has the authority to nominate a candidate for the office of President or Vice President) and ending on the date of the general election; and''.

    (3) Effective date; transition for electioneering communications made prior to enactment.--The amendment made by paragraph (2) shall apply with respect to communications made on or after January 1, 2016, except that no communication which is made prior to such date shall be treated as an electioneering communication under subclause (II) or (III) of section 304(f)(3)(A)(i) of the Federal Election Campaign Act of 1971 (as amended by paragraph (2)) unless the communication would be treated as an electioneering communication under such section if the amendment made by paragraph (2) did not apply.

    (b) Disclosure Requirements for Corporations, Labor Organizations, and Certain Other Entities.-- (1) In general.--Section 324 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30126) is amended to read as follows: ``SEC. 324. DISCLOSURE OF CAMPAIGN-RELATED DISBURSEMENTS BY COVERED ORGANIZATIONS.

    ``(a) Disclosure Statement.-- ``(1) In general.--Any covered organization that makes campaign-related disbursements aggregating more than $10,000 in an election reporting cycle shall, not later than 24 hours after each disclosure date, file a statement with the Commission made under penalty of perjury that contains the information described in paragraph (2)-- ``(A) in the case of the first statement filed under this subsection, for the period beginning on the first day of the election reporting cycle and ending on the first such disclosure date; and ``(B) in the case of any subsequent statement filed under this subsection, for the period beginning on the previous disclosure date and ending on such disclosure date.

    ``(2) Information described.--The information described in this paragraph is as follows: ``(A) The name of the covered organization and the principal place of business of such organization.

    ``(B) The amount of each campaign-related disbursement made by such organization during the period covered by the statement of more than $1,000, and the name and address of the person to whom the disbursement was made.

    ``(C) In the case of a campaign-related disbursement that is not a covered transfer, the election to which the campaign-related disbursement pertains and if the disbursement is made for a public communication, the name of any candidate identified in such communication and whether such communication is in support of or in opposition to a candidate.

    ``(D) A certification by the chief executive officer or person who is the head of the covered organization that the campaign-related disbursement is not made in cooperation, consultation, or concert with or at the request or suggestion of a candidate, authorized committee, or agent of a candidate, political party, or agent of a political party.

    ``(E) If the covered organization makes campaign-related disbursements using exclusively funds in a segregated bank account consisting of funds that were paid directly to such account by persons other than the covered organization that controls the account, for each such payment to the account-- ``(i) the name and address of each person who made such payment during the period covered by the statement; ``(ii) the date and amount of such payment; and ``(iii) the aggregate amount of all such payments made by the person during the period beginning on the first day of the election reporting cycle and ending on the disclosure date; but only if such payment was made by a person who made payments to the account in an [[Page S351]] aggregate amount of $10,000 or more during the period beginning on the first day of the election reporting cycle and ending on the disclosure date.

    ``(F) If the covered organization makes campaign-related disbursements using funds other than funds in a segregated bank account described in subparagraph (E), for each payment to the covered organization-- ``(i) the name and address of each person who made such payment during the period covered by the statement; ``(ii) the date and amount of such payment; and ``(iii) the aggregate amount of all such payments made by the person during the period beginning on the first day of the election reporting cycle and ending on the disclosure date; but only if such payment was made by a person who made payments to the covered organization in an aggregate amount of $10,000 or more during the period beginning on the first day of the election reporting cycle and ending on the disclosure date.

    ``(G) Such other information as required in rules established by the Commission to promote the purposes of this section.

    ``(3) Exceptions.-- ``(A) Amounts received in ordinary course of business.--The requirement to include in a statement filed under paragraph (1) the information described in paragraph (2) shall not apply to amounts received by the covered organization in commercial transactions in the ordinary course of any trade or business conducted by the covered organization or in the form of investments (other than investments by the principal shareholder in a limited liability corporation) in the covered organization.

    ``(B) Donor restriction on use of funds.--The requirement to include in a statement submitted under paragraph (1) the information described in subparagraph (F) of paragraph (2) shall not apply if-- ``(i) the person described in such subparagraph prohibited, in writing, the use of the payment made by such person for campaign-related disbursements; and ``(ii) the covered organization agreed to follow the prohibition and deposited the payment in an account which is segregated from any account used to make campaign-related disbursements.

    ``(C) Amounts received from affiliates.--The requirement to include in a statement submitted under paragraph (1) the information described in subparagraph (F) of paragraph (2) shall not apply to any amount which is described in subsection (f)(3)(A)(i).

    ``(4) Other definitions.--For purposes of this section: ``(A) Disclosure date.--The term `disclosure date' means-- ``(i) the first date during any election reporting cycle by which a person has made campaign-related disbursements aggregating more than $10,000; and ``(ii) any other date during such election reporting cycle by which a person has made campaign-related disbursements aggregating more than $10,000 since the most recent disclosure date for such election reporting cycle.

    ``(B) Election reporting cycle.--The term `election reporting cycle' means the 2-year period beginning on the date of the most recent general election for Federal office.

    ``(C) Payment.--The term `payment' includes any contribution, donation, transfer, payment of dues, or other payment.

    ``(b) Coordination With Other Provisions.-- ``(1) Other reports filed with the commission.--Information included in a statement filed under this section may be excluded from statements and reports filed under section 304.

    ``(2) Treatment as separate segregated fund.--A segregated bank account referred to in subsection (a)(2)(E) may be treated as a separate segregated fund for purposes of section 527(f)(3) of the Internal Revenue Code of 1986.

    ``(c) Filing.--Statements required to be filed under subsection (a) shall be subject to the requirements of section 304(d) to the same extent and in the same manner as if such reports had been required under subsection (c) or (g) of section 304.

    ``(d) Campaign-Related Disbursement Defined.--In this section, the term `campaign-related disbursement' means a disbursement by a covered organization for any of the following: ``(1) An independent expenditure consisting of a public communication.

    ``(2) An electioneering communication, as defined in section 304(f)(3).

    ``(3) A covered transfer.

    ``(e) Covered Organization Defined.--In this section, the term `covered organization' means any of the following: ``(1) A corporation (other than an organization described in section 501(c)(3) of the Internal Revenue Code of 1986).

    ``(2) An organization described in section 501(c) of such Code and exempt from taxation under section 501(a) of such Code (other than an organization described in section 501(c)(3) of such Code).

    ``(3) A labor organization (as defined in section 316(b)).

    ``(4) Any political organization under section 527 of the Internal Revenue Code of 1986, other than a political committee under this Act.

    ``(f) Covered Transfer Defined.-- ``(1) In general.--In this section, the term `covered transfer' means any transfer or payment of funds by a covered organization to another person if the covered organization-- ``(A) designates, requests, or suggests that the amounts be used for-- ``(i) campaign-related disbursements (other than covered transfers); or ``(ii) making a transfer to another person for the purpose of making or paying for such campaign-related disbursements; ``(B) made such transfer or payment in response to a solicitation or other request for a donation or payment for-- ``(i) the making of or paying for campaign-related disbursements (other than covered transfers); or ``(ii) making a transfer to another person for the purpose of making or paying for such campaign-related disbursements; ``(C) engaged in discussions with the recipient of the transfer or payment regarding-- ``(i) the making of or paying for campaign-related disbursements (other than covered transfers); or ``(ii) donating or transferring any amount of such transfer or payment to another person for the purpose of making or paying for such campaign-related disbursements; ``(D) made campaign-related disbursements (other than a covered transfer) in an aggregate amount of $50,000 or more during the 2-year period ending on the date of the transfer or payment, or knew or had reason to know that the person receiving the transfer or payment made such disbursements in such an aggregate amount during that 2-year period; or ``(E) knew or had reason to know that the person receiving the transfer or payment would make campaign-related disbursements in an aggregate amount of $50,000 or more during the 2-year period beginning on the date of the transfer or payment.

    ``(2) Exclusions.--The term `covered transfer' does not include any of the following: ``(A) A disbursement made by a covered organization in a commercial transaction in the ordinary course of any trade or business conducted by the covered organization or in the form of investments made by the covered organization.

    ``(B) A disbursement made by a covered organization if-- ``(i) the covered organization prohibited, in writing, the use of such disbursement for campaign-related disbursements; and ``(ii) the recipient of the disbursement agreed to follow the prohibition and deposited the disbursement in an account which is segregated from any account used to make campaign- related disbursements.

    ``(3) Exception for certain transfers among affiliates.-- ``(A) Exception for certain transfers among affiliates.-- ``(i) In general.--The term `covered transfer' does not include an amount transferred by one covered organization to another covered organization if such transfer-- ``(I) is not made directly into a separate segregated bank account described in subsection (a)(2)(E); and ``(II) is treated as a transfer between affiliates under subparagraph (B).

    ``(ii) Special rule.--If the aggregate amount of transfers described in clause (i) exceeds $50,000 in any election reporting cycle-- ``(I) the covered organization which makes such transfers shall provide to the covered organization receiving such transfers the information required under subsection (a)(2)(F) (applied by substituting `the period beginning on the first day of the election reporting cycle and ending on the date of the most recent transfer described in subsection (f)(3)(A)(i)' for `the period covered by the statement' in clause (i) thereof); and ``(II) the covered organization receiving such transfers shall report the information described in subclause (I) on any statement filed under subsection (a)(1) as if any contribution, donation, or transfer to which such information relates was made directly to the covered organization receiving the transfer.

    ``(B) Description of transfers between affiliates.--A transfer of amounts from one covered organization to another covered organization shall be treated as a transfer between affiliates if-- ``(i) one of the organizations is an affiliate of the other organization; or ``(ii) each of the organizations is an affiliate of the same organization; except that the transfer shall not be treated as a transfer between affiliates if one of the organizations is established for the purpose of making campaign-related disbursements.

    ``(C) Determination of affiliate status.--For purposes of this paragraph, the following organizations shall be considered to be affiliated with each other: ``(i) A membership organization, including a trade or professional association, and the related State and local entities of that organization.

    ``(ii) A national or international labor organization and its State or local unions, or an organization of national or international unions and its State and local entities.

    ``(iii) A corporation and its wholly owned subsidiaries.

    ``(D) Coverage of transfers to affiliated section 501(c)(3) organizations.--This paragraph shall apply with respect to an amount transferred by a covered organization to an organization described in paragraph (3) of section 501(c) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code in the same manner as this paragraph applies to an [[Page S352]] amount transferred by a covered organization to another covered organization.''.

    (2) Conforming amendment.--Section 304(f)(6) of such Act (52 U.S.C. 30104) is amended by striking ``Any requirement'' and inserting ``Except as provided in section 324(b), any requirement''.

    SEC. 3. APPLICATION OF DISCLOSURE RULES TO SUPER PACS.

    (a) In General.--Subsection (e) of section 324 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30126), as amended by section 2, is amended by adding at the end the following new paragraph: ``(5) A political committee with an account that accepts donations or contributions that do not comply with the contribution limits or source prohibitions under this Act, but only with respect to such accounts.''.

    (b) Conforming Amendment.--Paragraph (4) of section 324(e) of such Act (52 U.S.C. 30126), as amended by section 2, is amended by inserting ``(except as provided in paragraph (5))'' before the period at the end.

    SEC. 4. SEVERABILITY.

    If any provision of this Act or amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.

    SEC. 5. EFFECTIVE DATE.

    Except as provided in section 2(a)(3), the amendments made by this Act shall apply with respect to disbursements made on or after January 1, 2016, and shall take effect without regard to whether or not the Federal Election Commission has promulgated regulations to carry out such amendments.

    ____________________

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