Brinks Trucks in the Campaign

By Ciara Torres-Spelliscy, Assistant Professor of Law at Stetson University College of Law. She is the author of a forthcoming law review article entitled “How Much Does an Ambassadorship Cost?” as well as co-author with Dr. Kathy Fogel of “Shareholder-Authorized Corporate Political Spending in the United Kingdom” in the Spring 2012 issue of the University of San Francisco Law Review.

One open question vexing voters in 2012 is how much corporate money is influencing the election.  The reason that this basic question is so hard to answer is the broken system we have for reporting money in politics.

Of course, some money in politics can be easily traced thanks to the yeoman’s work of organizations like the Center for Responsive Politics, which runs OpenSecrets.org and the National Institute on Money in State Politics, which runs FollowTheMoney. But these two groups are only as strong as the underlying disclosure laws.

The loopholes in these disclosure laws are big enough to accommodate an armored Brinks truck full of campaign cash. Just like a real Brinks truck, voters can’t see through the truck to tell exactly how much money is in play.

The problem, as I’ve written about at greater length here and here, is the use of two types of non-profits: 501(c)(4)s and 501(c)(6)s. Combined with the FEC’s inadequate reporting rules (some of which a court has already ruled violated the APA in the Van Hollen v. FEC case), 501(c)(4)s and 501(c)(6)s provide the perfect subterfuge for big corporate campaign spending. 

The long and the short of the way the tax law and the campaign finance regulations interacts boils down to this: if a corporation funnels its political dollars through a nonprofit, the public is none the wiser.

This sorry state of affairs is unnecessary. A functional FEC would have fixed this disclosure problem long before the 2012 election. Legislation such as the DISCLOSE Act introduced by Sen. Sheldon Whitehouse is intended to provide transparency of our elections process.

As I write this, there is a filibuster in the Senate on the DISCLOSE Act. Voters want a transparent election where who is trying to sway their vote is crystal clear. We hold our democracy out as the light of the world. Wouldn’t it be better if this were actually true instead of mere rhetoric?