II 112th CONGRESS 2d Session S. 2219 IN THE SENATE OF THE UNITED STATES March 21, 2012 Mr. Whitehouse (for himself, Mr. Franken, Mr. Schumer, Mr. Bennet, Mr. Merkley, Mrs. Shaheen, Mr. Udall of New Mexico, Mr. Wyden, Mr. Sanders, Mr. Begich, Mrs. Murray, Mr. Menendez, Mr. Levin, Mr. Kerry, Mr. Bingaman, Mrs. Boxer, Mr. Harkin, Mr. Leahy, Ms. Stabenow, Mr. Rockefeller, Mrs. Gillibrand, Mr. Reed, Mr. Blumenthal, Mr. Durbin, Ms. Klobuchar, Mr. Coons, Mr. Cardin, Mr. Udall of Colorado, Mr. Brown of Ohio, Mr. Webb, Mr. Conrad, Mrs. McCaskill, Mr. Casey, Mr. Akaka, Mr. Lautenberg, Mrs. Feinstein, and Ms. Landrieu) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration 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.

1.

Short title

This Act may be cited as the Democracy Is Strengthened by Casting Light On Spending in Elections Act of 2012 or the DISCLOSE Act of 2012.

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 (2 U.S.C. 431(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 (2 U.S.C. 434(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 July 1, 2012, 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 (2 U.S.C. 441k) is amended to read as follows:

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 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 amount transferred by a covered organization to another covered organization.

. (2)

Conforming amendment

Section 304(f)(6) of such Act (2 U.S.C. 434) is amended by striking Any requirement and inserting Except as provided in section 324(b), any requirement.

3.

Stand by your ad

(a)

Disclaimer requirements To include functional equivalent of express advocacy

Section 318(a) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441d(a)) is amended by striking for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate and inserting for the purpose of financing public communications which are described in section 301(17)(A). (b)

Stand by your ad requirements

(1)

Maintenance of requirements for political parties and certain political committees

Section 318(d)(2) of such Act (2 U.S.C. 441d(d)(2)) is amended— (A)in the heading, by striking Others and inserting certain political committees; (B)by inserting which (except to the extent provided in the last sentence of this paragraph) is paid for by a political committee (including a political committee of a political party) and after subsection (a); (C)by striking or other person each place it appears; and (D)by adding at the end the following: This paragraph does not apply to a communication paid for in whole or in part with a payment which is treated as a campaign-related disbursement under section 324 and with respect to which a covered organization is required to file a statement under such section.. (2)

Special disclaimer requirements for certain communications

Section 318 of such Act (2 U.S.C. 441d) is amended by adding at the end the following new subsection: (e)

Communications by others

(1)

In general

Any communication described in paragraph (3) of subsection (a) which is transmitted through radio or television (other than a communication to which subsection (d)(2) applies) shall include, in addition to the requirements of such paragraph, the following: (A)The individual disclosure statement described in paragraph (2)(A) (if the person paying for the communication is an individual) or the organizational disclosure statement described in paragraph (2)(B) (if the person paying for the communication is not an individual). (B)If the communication is transmitted through television and is paid for in whole or in part with a payment which is treated as a campaign-related disbursement under section 324, the Top Five Funders list (if applicable). (C)If the communication is transmitted through radio and is paid for in whole or in part with a payment which is treated as a campaign-related disbursement under section 324, the Top Two Funders list (if applicable), unless, on the basis of criteria established in regulations issued by the Commission, the communication is of such short duration that including the Top Two Funders list in the communication would constitute a hardship to the person paying for the communication by requiring a disproportionate amount of the content of the communication to consist of the Top Two Funders list. (2)

Disclosure statements described

(A)

Individual disclosure statements

The individual disclosure statement described in this subparagraph is the following: I am ________, and I approve this message., with the blank filled in with the name of the applicable individual. (B)

Organizational disclosure statements

The organizational disclosure statement described in this subparagraph is the following: I am ________, the ________ of ________, and ________ approves this message., with— (i)the first blank to be filled in with the name of the applicable individual; (ii)the second blank to be filled in with the title of the applicable individual; and (iii)the third and fourth blank each to be filled in with the name of the organization or other person paying for the communication. (3)

Method of conveyance of statement

(A)

Communications transmitted through radio

In the case of a communication to which this subsection applies which is transmitted through radio, the disclosure statements required under paragraph (1) shall be made by audio by the applicable individual in a clearly spoken manner. (B)

Communications transmitted through television

In the case of a communication to which this subsection applies which is transmitted through television, the information required under paragraph (1)— (i)shall appear in writing at the end of the communication or in a crawl along the bottom of the communication in a clearly readable manner, with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 6 seconds; and (ii)shall also be conveyed by an unobscured, full-screen view of the applicable individual or by the applicable individual making the statement in voice-over accompanied by a clearly identifiable photograph or similar image of the individual, except in the case of a Top Five Funders list. (4)

Definitions

In this subsection: (A)

Applicable individual

The term applicable individual means, with respect to a communication to which this subsection applies— (i)if the communication is paid for by an individual, the individual involved; (ii)if the communication is paid for by a corporation, the chief executive officer of the corporation (or, if the corporation does not have a chief executive officer, the highest ranking official of the corporation); (iii)if the communication is paid for by a labor organization, the highest ranking officer of the labor organization; and (iv)if the communication is paid for by any other person, the highest ranking official of such person. (B)

Covered organization and campaign-related disbursement

The terms campaign-related disbursement and covered organization have the meaning given such terms in section 324. (C)

Top Five Funders list

The term Top Five Funders list means, with respect to a communication paid for in whole or in part with a payment which is treated as a campaign-related disbursement under section 324, a list of the 5 persons who provided the largest payments of any type which— (i)are in an aggregate amount equal to or exceeding $10,000 for the period beginning on the first day of the election reporting cycle (as defined in section 324) and ending on the date of such communication, and (ii)are required to be included in the reports filed by a covered organization under section 324(a). If 2 or more people provided the fifth largest of such payments, the covered organization involved shall select one of those persons to be included on the Top Five Funders list.(D)

Top Two Funders list

The term Top Two Funders list means, with respect to a communication paid for in whole or in part with a payment which is treated as a campaign-related disbursement under section 324, a list of the persons who provided the largest and the second largest payments of any type which— (i)are in an aggregate amount equal to or exceeding $10,000 for the period beginning on the first day of the election reporting cycle (as defined in section 324) and ending on the date of such communication, and (ii)are required to be included in the reports filed by a covered organization under section 324(a). If 2 or more persons provided the second largest of such payments, the covered organization involved shall select one of those persons to be included on the Top Two Funders list..

4.

Application of disclosure and disclaimer rules to Super PACs

(a)

In general

Subsection (e) of section 324 of the Federal Election Campaign Act of 1971 (2 U.S.C. 441k), as amended by section 2, is amended by adding at the end the following new paragraph: (5)A political committee with an account established for the purpose of accepting donations or contributions that do not comply with the contribution limits or source prohibitions under this Act, but only with respect to the accounts established for such purpose. . (b)

Conforming amendment

Paragraph (4) of section 324(e) of such Act (2 U.S.C. 441k), as amended by section 2, is amended by inserting (except as provided in paragraph (5)) before the period at the end.

5.

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.

6.

Effective date

Except as provided in section 2(a)(3), the amendments made by this Act shall apply with respects to disbursements made on or after July 1, 2012, and shall take effect without regard to whether or not the Federal Election Commission has promulgated regulations to carry out such amendments.