The FEC and DOJ cannot simply override Congress by rewriting 441f on their own, and overturn two court rulings in the process. Rather, to the extent mystery super PAC contributions are a problem, Congress must address the issue. Which brings us back to the DISCLOSE Act. While the bill addresses mystery super PAC contributions, it does so in a roundabout way. Rather than simply amend the statute to prohibit shell corporation contributions, DISCLOSE would require the shell corporations to file reports with the FEC.
DISCLOSE also introduces a whole slew of ancillary provisions having absolutely nothing to do with the recent court decisions. One requires groups that are not PACs to report all of their sources of income if they engage in political speech. Disclaimers for political ads, which already are the butt of pop culture jokes, also would become even wordier and more meaningless. Last month, Sens. Ron Wyden, D-Ore., and Lisa Murkowski, R-Alaska, sketched out what was intended as a more palatable alternative to DISCLOSE. However, their legislative framework suffers from many of the same fatal flaws.
Congress can address the problem of undisclosed super PAC contributions by adding a simple provision in the Federal Election Campaign Act, such as: “No person shall make a contribution to an entity formed for the sole or primary purpose of making contributions, and which entity is not subject to the reporting requirements of this Act.”
“Christmas tree” legislation like the DISCLOSE Act and Wyden-Murkowski have proven to be a monumental distraction and detour on the road to actual disclosure. As this article went live, millions of Americans are discarding their Christmas trees. Congress should follow their lead.
Eric Wang is a political law attorney and former counsel to a commissioner at the Federal Election Commission.