Playing “Whac-A-Mole” With Campaign Finance Disclosure

But, where's the mallet?

One of my favorite descriptions of the rapid appearance of ever more outside groups spending (who-knows-whose) money this election season is that these groups (Americans for Job Security, Crossroads GPS, and the like) have been “popping up like mushrooms after a rain.” So said a former IRS lawyer to The New York Times last month, as I’ve noted before. A mushrooming. Vivid and apt (and bonus points for the immediate fungus among us association).

Richard L. Hasen also had a vivid description of the popping up of these groups in a recent piece for Slate:

The disclosure chase has become a kind of Whac-A-Mole whereby groups that want to avoid disclosure choose different organizational forms in the tax code to hide donors.

It’s like a maddening carnival game: a group pops up and then, whacked by disclosure requirements, resurfaces elsewhere (from a more anonymous burrow). Don’t want everyone to know that your six-figure checks to our 527 group are helping fund political ads? Why not give those checks to the 501(c)(4) that we just now set up for publicity-shy donors like you? Again, a vivid and apt description. Except that, who is wielding the Whac-A-Mole mallet here? A small child, perhaps, or a blindfolded adult? Recall that many of these groups exist, as the Times put it, in a “sort of regulatory netherworld.” So once they pop up as, say, 501(c)(4)s, they probably aren’t living in fear of a regulatory whack-down (or, even, glance).

Hasen, a professor at Loyola Law School and blogger on election law, notes this, um, lacking whacking in his Slate piece, which is a brief and clear overview of campaign finance disclosure—a “stepping back,” as Hasen puts it—and well worth a read. Writes Hasen:

What’s the point of disclosing campaign donations? With all the controversy still swirling around whether the U.S. Chamber of Commerce is using foreign money to fund its $75 million effort to support Republican Congressional candidates, the secrecy of Karl Rove’s new political groups, and the emergence of new groups with anodyne-sounding names like the “Coalition to Protect Seniors,” it’s worth stepping back and asking why federal law requires campaign finance disclosure in the first place. Do we still need these laws? Do they work the way they’re supposed to?

“Let’s review,” invites the professor in the subhed of the piece. Topics touched on include: the arguments for and against campaign donation disclosure; “disclosure dodging,” as it was done earlier this decade and how it is done now; how the Internet factors in; and, what the DISCLOSE Act is (and isn’t).

Hasen ends with a hat tip to “enterprising journalists, especially at The New York Times, [who] have been digging into the shell game of contributions and spending,” pointing to the work of the Times’s Mike McIntire (as I have, more than once).

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Liz Cox Barrett is a writer at CJR.