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Comments

of the Sunlight Foundation to the Wyden/Murkowski disclosure proposal. The mission of the Sunlight Foundation is to use cutting-edge technology to make government transparent and accountable. Since Citizens United was first decided, we have been leading advocates of greater transparency around third party spending on election related activities. We very much appreciate your efforts at a bipartisan solution to the problem of dark money in elections. Many of Sunlights specific recommendations to shine a light on secret money can be found in the Stop Undisclosed Payments in Elections from Ruining Public Accountability Act, (the SUPERPAC Act) model legislation we proposed on the second anniversary of the Citizens United case. We urge you to look to that draft legislation as you begin to craft your own bill. We have no objection to your offices making these comments public. In dismantling 100 years of prohibitions against corporate treasury funds being used to elect candidates, the Court in Citizens United put a great deal of faith in the idea that disclosure will remove the taint of corruption from the new influx of cash. The majority opinion observed that the Internet is becoming the best way to hold politicians and influencers accountable. But, the Court created an entirely new spending regime for which no disclosure system is in place. For online transparency to perform the functions ascribed to it by the Citizens United ruling, Congress has to create new laws that reflect the new reality of expanded independent spending. Turning to the specific of the Wyden/Murkowski proposal, we would first note that, as in all efforts at creating legislation, the devil is in the details, and we cannot fully comment on a proposal until we see legislative language and understand how any proposed bill will work in practice. To that end, the DISCLOSE Act has been analyzed and vetted for many years now, and we would encourage you to work closely with the drafters of that bill to determine the consequences of each provision. They Wyden/Murkowski proposal lays out eight specific principles that, with only limited exception, the Sunlight Foundation supports. We strongly support making spending information available online, in real time. In this era of ubiquitous Internet use by campaigns and organizations alike, there will be few if any instances in which an online filing requirement will pose a burden. The principles state that there is a public interest in raising the minimum contribution that must be disclosedfrom its current more than $200 level to a new more than $500 level. As less than one-half of one percent of the total population gives $200 or more, we question whether it is necessary to shrink the already tiny pool of disclosure by those who give directly to candidates.

We are also concerned that the proposed registration that would be required of all organizations prior to making election-related expenditures might be overly burdensome and is constitutionally suspect. For various reasons, many organizations may not plan in advance whether they will participate in the elections and the registration requirement you suggest may prevent them from participating at all, chilling their speech. The Wyden/Murkowski disclosure proposal would require the IRS and FEC to establish joint regulations and guidance on what is and is not Election Related Activity. Unfortunately, neither agency has demonstrated its ability or commitment to crafting robust disclosure regulations. Requiring joint action by the two would, we believe, result in delay while risking a weakening of existing regulations. We agree that changes need to be made to both agencies to strengthen their ability to address the problem of dark money, but the promulgation of joint regulations will not remedy the current problems. You ask whether disclosure will result in reprisals by those who choose to participate in elections through outside groups. We do not believe that is a legitimate risk. As Justice Scalia said in Doe v. Reed: Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave. Individuals and PACs have been disclosing contributions to candidates for decades, without any evidence that such disclosures put donors at risk. Moreover, we would note for those in the media and elsewhere who have complained of reprisals in the form of boycotts of products or companies, such boycotts, like election related spending, are forms of free speech entitled to constitutional protection. The disclosure and disclaimer provisions contained in the Wyden/Murkowski proposal are an important step toward ensuring a more informed electorate more accountable elections. Please contact Lisa Rosenberg, Sunlights government affairs consultant, at lrosenberg@sunlightfoundation.com or (202) 360-7895 if you have any questions. The Sunlight Foundation applauds your effort and we look forward to working with your offices on this important effort.