The FEC’s cry for help
It has come to this: The chairman of the Federal Election Commission and a fellow Democratic commissioner have filed a petition asking their own agency to do its job. Don’t hold your breath. It’s not news that the campaign finance system is out of control. It’s not news that the FEC has watched, haplessly, as candidates and their super PACs have made a mockery of individual contribution limits and as a torrent of unreported “dark money” sweeps through a system premised on disclosure.
The conventional narrative places the blame on the Supreme Court and its 2010 Citizens United ruling, which, along with subsequent decisions, paved the way to unlimited independent expenditures by corporations and bands of wealthy individuals (via super PACs).
But this account both overstates the ruling’s significance and neglects to hold the FEC to task for failing, even in the difficult post- Citizens United legal landscape, to perform its enforcement and regulatory functions.
Recall, even before Citizens United — indeed, since the high court’s landmark 1976 ruling in Buckley v. Valeo — the justices made clear that the First Amendment protects the ability of wealthy individuals to spend unlimited sums of their own money to promote (or oppose) individual candidates. The catch has been that these expenditures are supposed to be (a) disclosed and (b) made independently of candidates. Ha and ha. Disclosure has become more or less optional. If you want to influence an election and don’t want your fingerprints on the spending, just employ the mechanism of a nonprofit organization operating under the fiction that it is a “social welfare organization” for which politics is not the primary activity. Such “dark money” accounted for nearly one-third of outside spending in 2012.
Independence is similarly fictional, particularly with the emergence of the candidate-specific super PAC. These entities exist for a single purpose— to promote a candidate rather than any party or ideology. They are run by the candidate’s allies and advisers, and the candidate can headline its fundraisers as long as he or she doesn’t directly solicit the big check.
Was this what the justices contemplated in Citizens United? “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” observed Justice Anthony M. Kennedy, dismissing concerns about corruption. Ha again. A functional FEC — the ultimate bureaucratic oxymoron — could have averted a good deal of this damage. The FEC has never been a model of effectiveness; it was deliberately created to have six members, equally divided between the two parties, to avoid any risk of partisan tilt.
But since about 2008, the previous era of FEC gridlock has begun to look like the golden age of activist enforcement. Republican commissioners selected by Sen. Mitch McConnell, an ardent foe of campaign finance reform, have essentially balked at doing anything but the most skeletal enforcement and regulation — and that may be a charitable assessment. One measure: The agency collected under $600,000 in fines last year, less than half the 2013 total and a record low, according to the New York Times.
“We’re heading into an election where we know we’re going to see hundreds of millions of dollars raised and spent in ways designed to keep the American people in the dark about where the money is going to be coming from,” Democratic Commissioner Ellen Weintraub told me. “Candidates are interacting with outside spending groups in ways that defy any rational definition of what coordination and independence mean. And here at the FEC we couldn’t even find agreement that foreign pornographers shouldn’t be spending money to influence American voters.”
The FEC, Chairman Ann Ravel told the New York Times in May, is “worse than dysfunctional,” and speaking with me, she echoed that bleak assessment.
“I’ve never been in a situation where people do not appear to support the mission of the agency,” she said of Republican commissioners. “On any issues that I think are the most significant matters that the commission faces ... there is not one chance that the Republicans will provide a fourth vote for those issues.”
Hence the extraordinary move by Ravel and Weintraub to prod their own agency. They ask it to write rules to ensure “dark money” disclosure and super-PAC independence.
Onone level, this is a stunt, doomed to fail. On another, it’s an understandable plea for public attention. The Supreme Court notwithstanding, many of the problems with our campaign finance system could be fixed, if the public insisted that those entrusted with policing this mess actually perform their duty.