The FEC’s cry for help

The Washington Post Sunday - - SUNDAY OPINION - RUTH MAR­CUS ruth­mar­cus@wash­post.com

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.

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