A Legal Analysis of Senate Electronic Filing Bill (S. 482) and Poison Pill Amendment


March 19, 2009

Dear Senator:

The Campaign Legal Center has reviewed S. 482, the Senate Campaign Disclosure Parity Act, introduced by Senator Russ Feingold (D-WI), which would require Senate candidates to file campaign finance disclosure reports in electronic form with the Secretary of the Senate. We have also reviewed an unrelated amendment expected to be offered to S. 482 that has previously served as a "poison pill" and helped to scuttle earlier efforts to enact electronic disclosure for Senators.

Our organization is a non-partisan Washington-based legal institute with particular expertise in government ethics and issues of campaign finance law and lobbying regulation. The Legal Center offers nonpartisan analyses of issues and represents the public interest in administrative, legislative and legal proceedings. We also monitor the Federal Election Commission's activities and enforcement of the law.

Under S. 482, upon receipt of the campaign finance reports the Secretary would be required to forward the electronic reports to the FEC within one working day. The FEC is required to make available on the Internet within 24 hours any filing it receives electronically. If the bill is enacted, electronic versions of Senate reports would be available to the public within 48 hours of their filing.

Currently, campaign finance reports for Senate candidates are submitted only in paper form, while reports for House and Presidential candidates and other political committees are filed electronically. The majority of states have already adopted mandatory electronic filing for state candidates. Senate candidate reports, after being filed in paper form, must be scanned by hand and uploaded into a database for purposes of public disclosure. In addition to uploading scanned images of Senate disclosure reports, contributor information for Senate candidates is also manually keyed into the FEC disclosure database, but candidate expenditure data is not. This cumbersome practice, largely done by a paid contractor, costs taxpayers more than $250,000 annually and results in delayed and incomplete disclosure, which can be particularly detrimental close to an election. Disclosure is delayed because the process of manually entering the data often takes more than a month. Disclosure is incomplete because only contribution data, not expenditure data, is keyed into the database and therefore searchable. Furthermore, the re-entry of data by hand increases the error rate. Most candidates already use electronic software to prepare their campaign finance reports—including free FEC software—but then spend money to print out and copy the reports and mail them in.

We understand that Senator Pat Roberts (R-KS) has indicated that when S. 482 is brought to the Senate floor, he is planning on offering an amendment dealing with an unrelated issue concerning Senate ethics procedures. The amendment is expected to be similar to one proposed last Congress by Senator John Ensign (R-NV). That amendment sought to attach a measure to the electronic filing bill that would require full donor disclosure by any organization that files an ethics complaint against Senators. The Legal Center examined this amendment when it was filed in the last Congress. Our analysis found that the ethics amendment is unnecessary and potentially unwise as it would force organizations that file ethics complaints to publicly reveal their significant donors. While it is understandable that some sitting Senators would find it attractive to scare off potential ethics complaints, such a move would damage the ethics process. It is more likely to be used as a tool of intimidation than as a source of needed or valuable disclosure. Moreover, this proposed change in the Senate ethics rules is not germane to the underlying bill dealing with timely public disclosure of campaign finance contributions.

The changes proposed in S. 482 would resolve the problems that result from the currently inefficient and inaccurate Senate disclosure process. Electronic disclosure ensures that citizens have timely access to campaign finance information about Senate candidates that they are entitled to receive in order to inform their election day decision-making.