H.R. 4010 (112th): DISCLOSE 2012 Act

112th Congress, 2011–2013. Text as of Feb 09, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

2d Session

H. R. 4010

IN THE HOUSE OF REPRESENTATIVES

February 9, 2012

(for himself, Mr. Brady of Pennsylvania, Mr. Hoyer, Mr. Clyburn, Mr. George Miller of California, Mr. Conyers, Mr. Becerra, Mr. Waxman, Mr. Levin, Ms. Slaughter, Mr. Israel, Mr. Markey, Mr. Thompson of California, Mr. Price of North Carolina, Mr. Welch, Mr. Deutch, Mr. Bishop of New York, Mr. Pascrell, Mr. Farr, Mr. Gene Green of Texas, Mr. McGovern, Mrs. Capps, Mr. Johnson of Georgia, Mr. Holt, Mr. Sarbanes, Mr. Boswell, Mr. Andrews, Mr. Schiff, Mr. Nadler, Ms. Eshoo, Ms. Schwartz, Mrs. Christensen, Mr. Tonko, Ms. Zoe Lofgren of California, Ms. Castor of Florida, Mr. Langevin, Mr. Larson of Connecticut, Mr. Carnahan, Mrs. Maloney, Mr. Stark, Ms. Tsongas, Ms. Wasserman Schultz, Mr. Yarmuth, Ms. Hahn, Ms. Matsui, Ms. Woolsey, Ms. Speier, Ms. Linda T. Sánchez of California, Ms. Loretta Sanchez of California, Mr. Smith of Washington, Mr. Scott of Virginia, Ms. McCollum, Mr. Garamendi, Ms. Lee of California, Mr. Jackson of Illinois, Ms. Waters, Mr. Cummings, Mr. Cleaver, Mr. Polis, Mr. McNerney, Mr. Frank of Massachusetts, Mr. Berman, Mr. Dicks, Ms. Velázquez, Mr. Ruppersberger, Ms. Eddie Bernice Johnson of Texas, Ms. Edwards, Mr. Loebsack, Mr. Lynch, Mr. Rush, Mr. Sherman, Mr. Gonzalez, Mr. Larsen of Washington, Mr. Costa, Mr. Rangel, Ms. Roybal-Allard, Mr. Filner, Mr. Lewis of Georgia, Ms. DeGette, Mr. Olver, Mr. Honda, Mrs. Napolitano, Mr. Cohen, Mr. Ellison, and Ms. Bass of California) introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, and other entities, and for other purposes.

1.

Short title

This Act may be cited as the Disclosure of Information on Spending on Campaigns Leads to Open and Secure Elections Act of 2012 or the DISCLOSE 2012 Act.

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, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because 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 or preference election or a convention or caucus of a political party which has the authority to nominate a candidate for the office of President or Vice President is held in any State 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 section 304(f)(3)(A)(i) (II) or (III) 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 a calendar year 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 preceding calendar year 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.

(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 contributed, donated, transferred, or paid directly to such account by persons other than the covered organization that controls the account, for each contribution, donation, transfer, payment of dues, or other payment to the account—

(i)

the name and address of each person who made such contribution, donation, transfer, payment of dues, or other payment during the period covered by the statement;

(ii)

the date and amount of such contribution, donation, transfer, payment of dues, or other payment; and

(iii)

the aggregate amount of all such contributions, donations, transfers, payments of dues, and other payments made by the person during the period beginning on the first day of the preceding calendar year and ending on the disclosure date;

but only if such contribution, donation, transfer, payment of dues, or other payment was made by a person who made contributions, donations, transfers, payments of dues, or payments to the account in an aggregate amount of $10,000 or more during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
(F)

Subject to paragraph (4), if the covered organization makes campaign-related disbursements using funds other than funds in a segregated bank account described in subparagraph (E), for each contribution, donation, transfer, or payment of dues to the covered organization—

(i)

the name and address of each person who made such contribution, donation, transfer, or payment of dues during the period covered by the statement;

(ii)

the date and amount of such contribution, donation, transfer, or payment of dues; and

(iii)

the aggregate amount of all such contributions, donations, transfers, and payments of dues made by the person during the period beginning on the first day of the preceding calendar year and ending on the disclosure date;

but only if such contribution, donation, transfer, or payment of dues was made by a person who made contributions, donations, transfers, or payments of dues to the covered organization in an aggregate amount of $10,000 or more during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
(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 the ordinary course of any trade or business conducted by the covered organization or in the form of investments 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 contribution, donation, transfer, payment of dues, or other payment made by such person for campaign-related disbursements; and

(ii)

the covered organization agreed to follow the prohibition and deposited the contribution, donation, transfer, payment of dues, or other payment in an account which is segregated from any account used to make campaign-related disbursements.

(4)

Disclosure date

(A)

In general

Except as provided in subparagraph (B), the term disclosure date means—

(i)

the first date during any calendar year by which a person has made campaign-related disbursements aggregating more than $10,000; and

(ii)

each date following the date described in clause (i) during such calendar year by which a person has made campaign-related disbursements aggregating more than $10,000.

(B)

Disclosure date for certain transfers

In the case of a statement filed with respect to a campaign-related disbursement which is a covered transfer described in subsection (f)(1)(E), the term disclosure date means the date on which the covered organization making such transfer knew or should have known that the recipient of such transfer made campaign-related disbursements in an aggregate amount of $50,000 or more during the 2-year period beginning on the date of the transfer.

(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, as defined in section 301(22).

(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 (except as provided in paragraph (5)).

(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.

(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 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

The term covered transfer does not include an amount transferred by one covered organization to another covered organization which is treated as a transfer between affiliates under subparagraph (B) if the aggregate amount transferred during the year by such covered organization to that same covered organization is equal to or less than $50,000.

(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 subparagraph (B), a covered organization is an affiliate of another covered organization if—

(i)

the governing instrument of the organization requires it to be bound by decisions of the other organization;

(ii)

the governing board of the organization includes persons who are specifically designated representatives of the other organization or are members of the governing board, officers, or paid executive staff members of the other organization, or whose service on the governing board is contingent upon the approval of the other organization; or

(iii)

the organization is chartered by the other organization.

(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 for campaign-Related disbursements

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 a campaign-related disbursement, as defined in section 324, consisting of a public communication.

(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 files 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), unless, on the basis of criteria established in regulations issued by the Commission, the communication is of such short duration that including the Top Five 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 Five Funders list.

(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 five persons who provided the largest payments of any type in an aggregate amount equal to or exceeding $10,000 which are required under section 324(a) to be included in the reports filed by a covered organization with respect to such communication during the 12-month period ending on the date of the disbursement and the amount of the payments each such person provided. If two 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 in an aggregate amount equal to or exceeding $10,000 which are required under section 324(a) to be included in the reports filed by a covered organization with respect to such communication during the 12-month period ending on the date of the disbursement and the amount of the payments each such person provided. If two 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.

Shareholders’ right to know

Title III of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) is amended by adding at the end the following new section:

325.

Disclosures by covered organizations to shareholders, members, and donors of information on campaign-related disbursements

(a)

Information on campaign-Related disbursements To be included in periodic reports

A covered organization which submits regular, periodic reports to its shareholders, members, or donors on its finances or activities shall include in each such report, in a clear and conspicuous manner, the information included in the statements filed by the organization under section 324 with respect to the campaign-related disbursements made by the organization during the period covered by the report.

(b)

Hyperlink to information included in reports filed with Commission

(1)

Required posting of hyperlink

If a covered organization maintains an Internet site, the organization shall post on such Internet site a hyperlink from its homepage to the location on the Internet site of the Commission which contains the information included in the statements filed by the organization under section 324 with respect to campaign-related disbursements.

(2)

Deadline; duration of posting

The covered organization shall post the hyperlink described in paragraph (1) not later than 24 hours after the Commission posts the information described in such paragraph on the Internet site of the Commission, and shall ensure that the hyperlink remains on the Internet site of the covered organization until the expiration of the 1-year period which begins on the date of the election with respect to which the campaign-related disbursements are made.

(c)

Definitions

The terms campaign-related disbursement and covered organization have the meanings given such terms in section 324.

.

5.

Lobbyists’ campaign funding disclosure

(a)

Disclosure of independent expenditures and electioneering communications

Section 5(d)(1) of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1604(d)(1)) is amended—

(1)

by striking and at the end of subparagraph (F);

(2)

by redesignating subparagraph (G) as subparagraph (I); and

(3)

by inserting after subparagraph (F) the following new subparagraphs:

(G)

the amount of any independent expenditure (as defined in section 301(17) of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(17)) equal to or greater than $1,000 made by such person or organization, and for each such expenditure the name of each candidate being supported or opposed and the amount spent supporting or opposing each such candidate;

(H)

the amount of any electioneering communication (as defined in section 304(f)(3) of such Act (2 U.S.C. 434(f)(3)) equal to or greater than $1,000 made by such person or organization, and for each such communication the name of the candidate referred to in the communication and whether the communication involved was in support of or in opposition to the candidate; and

.

(b)

Disclosure of amounts provided to certain political committees

Section 5(d)(1)(D) of such Act (2 U.S.C. 1605(d)(1)(D)) is amended by striking or political party committee, and inserting the following: political party committee, or political committee which is treated as a covered organization under section 324(f)(1)(D) of the Federal Election Campaign Act of 1971,.

(c)

Effective date

The amendments made by this section shall apply with respect to reports for semiannual periods described in section 5(d)(1) of the Lobbying Disclosure Act of 1995 that begin after the date of the enactment of this Act.

6.

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.

7.

Effective date

Except as provided in section 5, the amendments made by this Act shall apply with respects to disbursements made on or after July 1, 2012.