In some ways, the SEC is a last resort. Reform groups have pressed the FEC to take enforcement actions against violators of campaign finance laws, but it has been paralyzed by partisan gridlock and five of its six commissioners are serving as lame ducks whose terms have already expired. Reformers also have urged the IRS to revoke the tax status of nonprofit groups that misrepresent their plans to spend on politics, with equally little success. The angry letter to President Obama by good government groups on Tuesday forcefully articulated these frustrations.
Political nonprofits in particular have made it possible for special interests to spend on politics with an expectation of secrecy. The proposed SEC rule would shut down an avenue for undisclosed political spending that no other agency has indicated it will address, even when the spending appears to violate other rules by these agencies.
Who is in charge of making the decision?
The SEC must decide independently whether to propose the rule. Currently, five of the commission’s six seats are filled, with three Democratic appointees and two Republican appointees. The swing vote, according to the Times, is likely to be the newly confirmed chairwoman, Mary Jo White.
She is expected to weigh not only the merits of the rule but also how to use her agency’s limited resources and political capital. The SEC is already locked in a lengthy struggle to implement the Dodd-Frank financial reform bill, and proposing a new restriction on corporate political spending would likely result in another pitched battle with Wall Street and other powerful business interests.
The SEC cited these challenges in a statement to CJR that suggested it may further delay its decision. “The staff is considering whether to make a recommendation, but the timing of any recommendation will be influenced by the ongoing workload of Dodd-Frank and JOBS Act rulemaking,” said SEC spokesman John Nester.
That seems like a tough call for the SEC. Can anyone influence its decision?
Both sides are definitely trying. As we noted, the petition for the rule gained momentum due to the efforts of a Democratic-leaning coalition to raise a groundswell of support for it. Not coincidentally, the corporations, trade associations, and political nonprofits that would be affected by the rule predominantly support Republicans.
Groups such as the Chamber of Commerce, Construction Industry Round Table, and National Association of Manufacturers have lobbied hard to keep the SEC from acting, according to the Sunlight Foundation. Congressional Republicans have also gotten involved. In April, Rep. Scott Garrett (R- New Jersey), who chairs the House subcommittee that oversees the SEC, introduced legislation that would ban the agency from issuing political disclosure regulations.
Would the rule really make a difference? How much of an effect would it have on dark money in politics?
As the growing campaigns on each side of the rule suggest, it does have the potential to make a big difference. Trade associations and political nonprofits have become hugely popular targets for donations precisely because they are not required to disclose their donors—an attribute that is highly appealing to powerful companies that want to influence politics but don’t want alienate large numbers of consumers (or politicians of the opposing party). If the SEC were to impose the rule, it would drag a class of dark money donors in the sunlight.
If the SEC does adopt the rule, one crucial question would be whether donations to political nonprofits and trade associations, currently the main conduits for dark money, would in fact be covered. Direct donations to candidates, which would also be included under the rule, must already be disclosed to the Federal Election Commission. The law professors’ petition urged the SEC to develop criteria specifying what categories of recipient groups should be included, but pointedly noted that disclosure of “corporate contributions to intermediaries that spend a large fraction of their funds on politics” is warranted.