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Fading Disclosure

Increasing Number of Electioneering Groups Keep Donors’ Identities Secret

By Taylor Lincoln and Craig Holman

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In his 2010 majority opinion in Citizens United v. Federal Election Commission, Justice Anthony Kennedy justified lifting restrictions on corporate and union electioneering activities in part because of disclosure requirements in the Bipartisan Campaign Reform Act of 2002 (BCRA).

“It must be noted, furthermore, that many of Congress’ findings in passing BCRA were pre- mised on a system without adequate disclosure,” Kennedy wrote in Citizens United. With BCRA’s disclosure requirements, he continued, “citizens can see whether elected officials are ‘in the pocket of so-called moneyed interests.’ ”1

Citizens United upheld the constitutionality of BCRA’s requirement for independent groups making electioneering communications to disclose within 24 hours who funded a given ex- penditure and how much was spent. Electioneering communications are advertisements broadcast shortly before an election that mention candidates but stop short of expressly advocating voting for or against them. But Citizens United, coupled with the court’s 2007 decision in Federal Election Commission v. Wisconsin Right to Life, opened gaping loopholes in the very disclosure requirements that Kennedy extolled.