Introduction

Federal Communications Commission headquarters. Evan Bush / Center for Public Integrity

Sen. Ted Cruz, R-Texas, and a dozen of his Republican colleagues have asked the Federal Communications Commission to resist implementing new rules targeting the makers of political advertisements in the absence of Congress passing new disclosure legislation.

“Political issues should be left to Congress,” the senators wrote in a letter dated April 10 and obtained by the Center for Public Integrity. “If [the FCC] were to attempt to establish through rulemaking what Congress has declined to act upon, it would seriously undermine the integrity of the Commission and imperil its independence.”

The new letter, which was also signed by Senate Minority Leader Mitch McConnell, R-Ky., calls the yet-to-be-passed DISCLOSE Act “one of the most politically charged, partisan issues in recent Congresses.” It criticizes the legislation for raising “grave Constitutional concerns for speech protected by the First Amendment.”

The letter also admonishes the FCC not to become an arm of the Democratic Party.

“The FCC has a long tradition of being nonpartisan,” the letter states. “We strongly urge you to categorically reject instituting the DISCLOSE Act by fiat.”

Representatives for Cruz and the FCC could not immediately be reached for comment.

The senators’ message comes a month after FCC officials testified before the Senate Commerce Committee about political advertisements. At the time, Sens. Bill Nelson, D-Fla., and Jay Rockefeller, D-W. Va., advocated that the commission play a larger role in unmasking the funders of political advertisements.

It also comes a day after Cruz questioned the government’s interest in “regulating the independent expenditures of public citizens” during a Senate Judiciary Committee subcommittee hearing.

Senate Democrats have been unsuccessful in multiple attempts to pass legislation that would create new reporting and disclosure requirements for groups that air political advertisements.

In the wake of the U.S. Supreme Court’s Citizens United v. Federal Election Commission ruling in 2010, Democrats garnered 59 votes for the DISCLOSE Act, one vote shy of threshold needed to break a GOP filibuster.

Political action committees, including super PACs, are required to disclosure their donors to the Federal Election Commission.

But politically active nonprofits organized under sections 501(c)(4), 501(c)(5) and 501(c)(6) of the U.S. tax code need only identify funders who earmark donations for specific political ads.

In other words, such groups today may operate just as super PACs do when it comes to sponsoring ads that advocate for or against political candidates — without the legal burden of disclosing most or all of their contributors.