WASHINGTON — After five years of deadlock and facing increasing concerns of terminal dysfunction, the Federal Election Commission has moved forward on implementing new rules in response to the Supreme Court’s two most significant recent decisions related to election finance.
The most prominent of these rulings, the 2010 case known as Citizens United, lifted longstanding limits on the amount of money corporations and unions can spend on political causes. The second decision, known as McCutcheon, was handed down last year, and similarly lifted caps on how much individuals can spend in support of political candidates.
Last week, five years after the Supreme Court’s ruling, the FEC issued final rules for its implementation of part of the Citizens United decision. It also formally published a notice that it intends to take up a new rulemaking process around the McCutcheon decision, with a call for public comments ahead of a hearing scheduled for February.
The actions marked extremely rare movement for the FEC, which consists of three Democrats and three Republicans and has been marked by near-constant deadlock in recent years. Yet the new moves – facilitated by a Democratic commissioner who agreed to a compromise package – have outraged supporters of greater election finance reform. Critics say the FEC’s new rule changes fail to address one of the most important aspects of the Citizens United ruling: public disclosure of political spending.
“The fact here is that we face a serious threat to our democracy from the Citizens United ruling, and the FEC was established in the wake of the Watergate scandal to deal with the very danger to our elections posed by the corrupting influence of money in politics,” John Bonifaz, the president of Free Speech For People, an advocacy group, told MintPress News.
“Now, this decision by the majority of the commission only exacerbates the threat posed by the Citizens United ruling. It does nothing to address the real need for disclosure of this dark money that is now coming into our elections in the hundreds of millions of dollars.”
Little-discussed mandate
The Citizens United and McCutcheon rulings are two of the most contentious in the Supreme Court’s recent history. Together, they have resulted in the unprecedented flood of outside and untraceable money that has come to define modern U.S. elections. The current election cycle, for instance, ahead of mid-term polls next month, is on track to break records that will likely become a new norm.
Both the Citizen United and McCutcheon cases were brought against the FEC, and in both instances the commission lost. Yet how exactly the regulator would rewrite its rules in response to the decisions has remained up in the air. In fact, much of it remains uncertain.
As Bonifaz notes, advocates of stricter campaign finance regulations have been watching closely to see how the commission would deal with the issue of disclosure, a little-discussed but important mandate of the Citizens United decision. While the court’s majority did not want to limit political spending on free speech grounds, they also did not necessarily support the secrecy that has, in effect, surrounded much of this spending.
“[T]ransparency enables the electorate to make informed decisions and give proper weight to different speakers and messages,” the ruling states. And indeed, in the years since the 2010 decision, this precedent has bolstered legal attacks on disclosure rules across the country.
Justice Antonin Scalia, a prominent backer of the Citizens United decision, has likewise been clear on the importance of disclosure in the years since the ruling. “I think Thomas Jefferson would have said the more speech, the better,” Scalia said in a media interview in 2012. “That’s what the First Amendment is all about. So long as the people know where the speech is coming from.”
Now that it has finally gotten around to implementing the Citizens United decision, though, the FEC has pointedly not dealt with this corollary aspect of making clear the provenance of political spending.
The Democratic commissioner who voted with her Republican colleagues to approve last week’s package, Ann M. Ravel, has stated that she hopes the commission will take up the issue of disclosure at a later date.
“Because the Commission’s action today is the result of a compromise, all of the significant issues raised by the Supreme Court’s decision are not addressed,” she said in a formal statement last week.
“Although the Citizen’s United decision affirmed … donor disclosure requirements, full public disclosure of corporate and labor organization independent spending is not yet a reality and will have to be tackled in the future.”
Ravel was appointed to the commission in October and says she had made forging compromise on Citizens United a priority for her tenure. According to media analysis, she is hoping that her action in facilitating last week’s package will now lead Republicans on the commission to compromise on other deadlocked issues, including disclosure.
Many observers are pessimistic that this will happen.
“Ravel has made a huge concession in not addressing disclosure, and is clearly hoping this overture will be reciprocated by one or more Republicans. But I have serious doubts,” Craig Holman, a government affairs lobbyist for Public Citizen, the consumer advocacy group, told MintPress.
“Not only have the Republicans on the commission shown no willingness to budge, but they have declared outright that they will not revisit disclosure. In that case, updating these regulations is meaningless – just paperwork.”
“Rigged process”
Holman’s pessimism appears to be strongly shared by the other two Democratic commissioners on the FEC, who voted not to approve last week’s actions. Perhaps the most passionate rebuttal came from Ellen L. Weintraub, who has been on the commission since 2002 and has been at the heart of attempts to convince Republicans to allow for a rulemaking process around disclosure.
“I could not support the proposal adopted today because it does nothing to address the tsunami of dark money flooding our system,” Weintraub wrote in a formal statement. “While there is no doubt that a rulemaking to address Citizens United is long overdue, today’s otherwise bare-bones amendments do more harm than good.”
Weintraub notes that anonymous political spending is projected to surpass $700 million for the current mid-term electoral cycle – twice that spent during the presidential election of 2012. She is calling for a comprehensive review of the Citizens United mandate, as well as a reappraisal of how the FEC should move forward.
Calling Republicans’ refusal to deal with the Citizens United mandate on disclosure “censorship,” Weintraub also warned that the FEC is increasingly a broken institution. In her statement, she said the commission is following a “rigged rulemaking process designed to ensure that no serious change would be considered.”
This is strong language coming from within the commission itself, but it echoes a broader sentiment that has been building in recent years. Fred Wertheimer, a prominent campaign finance lawyer, is even calling for the dissolution of the FEC, citing its inability to deliver on its mandate.
“The biggest failure of the Watergate reforms is the dysfunctional Federal Election Commission,” Wertheimer wrote in a New York Times article published Tuesday. “The F.E.C. should be abolished and replaced with a real campaign finance enforcement agency. Finding new ways to use technology to provide smaller contributions online would reduce the impact of big money.”
According to Public Citizen’s Holman, the current dysfunction began with President Barack Obama’s election. He says that was when the Senate minority leader, Sen. Mitch McConnell, one of the most ardent critics of campaign finance limitations, decided to use his ability to appoint the Republican FEC commissioners to his advantage.
“Since 2008, the number of deadlocks on the FEC, especially on enforcement decisions, increased ninefold,” Holman said. “The reason is that Mitch McConnell has realized he can’t get either the public or Congress to repeal campaign finance laws. But if he appoints commissioners who refuse to enforce the law, that has the same effect.”
Incremental approach
In fact, McConnell does not have an inherent ability to dictate, or even influence, the terms of the FEC’s discussions.
While Obama has outsourced the responsibility to appoint FEC commissioners to the Senate leadership, he could take back that power and make these appointments himself. Advocates are increasingly calling on him to take a more active role in an issue that they see as endangering the very integrity of democracy in this country.
“I certainly think the White House needs to be more engaged on this question,” Free Speech for People’s Bonifaz said. “The president has spoken in favor of a [constitutional] amendment, but I think he could be doing a lot more to address what a serious threat this is to the republic. There has to be a response to Citizens United that does not simply result in making matters worse – which this ruling will do.”
Bonifaz and others are currently trying to drum up enough public and political support to amend the U.S. Constitution in order to limit the influence of money in politics. In the meantime, however, he notes that there is important incremental work taking place at the lower levels of government and citizen engagement around this issue.
“We do believe there’s a lot of room for the states to engage in pushing back against Citizens United,” he said, pointing to legislation in Maryland that would require shareholder approval of corporate political expenditures.
“We think every state should do that,” he continued. “The amendment movement will only continue to grow because of this type of pressure from the states and municipalities.”