The Death of the FEC

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Rick Hasen has a must read column on the death of the Federal Election Commission and the slow erosion of campaign finance laws, including important disclosure provisions:

The Republican commissioners have eviscerated campaign finance law simply by resisting the enforcement of such laws. Consider the all-important topic of campaign finance disclosure. As part of the 2002 McCain-Feingold reforms, Congress required that virtually all contributions that pay for television or radio ads close to an election and feature a federal candidate must be disclosed in reports filed with the FEC. The disclosure requirement became even more important after Citizens United, because the Supreme Court’s ruling for the first time allowed corporations to spend money directly in federal elections. If the corporations can spend money while shielding their activities from public view, they can avoid alienating customers.

Over the summer, the three Republican FEC commissioners blocked an investigation into whether the conservative group Freedom’s Watch violated the disclosure provisions by failing to identify its donors. As Paul Ryan of the reform-oriented Campaign Legal Center describes, in a Statement of Reasons explaining the vote, the Republican commissioners made clear that they will not require the disclosure of the identity of a contributor to a group like Freedom’s Watch unless that contributor earmarks the money for a specific ad. In other words, unless someone donates with instructions like “Use this money to run an ad on Channel 7 against Barbara Boxer on Sept. 3 at 4 p.m.,” the contribution need not be disclosed.

Commissioner statements like this one signal to campaign finance lawyers what their groups can and cannot do. You can imagine the predicate effect of this one: no more disclosure of most contributions funding election ads.

Let’s be clear. The Republican FEC Commissioners are not simply following the Supreme Court’s lead in Citizens United. In that case, Justice Anthony Kennedy praised the benefits of full disclosure of corporate money in elections, for both shareholders and voters. Despite this language in the ruling, the Republican FEC commissioners have already undermined existing disclosure laws, and the remaining provisions of campaign law seem up for grabs, too.

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