FEC Chills Debate on Post-Citizens United Transparency


The Federal Election Commission is the supposed enforcer of the nation’s campaign finance and disclosure laws. But, with commissioners evenly divided between Democrats and Republicans, the FEC has long lived up to its reputation as being an agency designed to fail. Based on the witnesses it invited to testify about proposed rules regarding disclosure of independent expenditures and electioneering communications, it seems the agency is not only designed to fail, but is setting itself up to do so.

The FEC would probably argue that the five witnesses who testified represented a cross-section of ideas and positions, from the Chamber of Commerce to the AFL-CIO; the Alliance for Justice Action Campaign to the Center for Competitive Politics and the James Madison Center for Free Speech. But in terms of the positions they advanced on whether the FEC has the authority to draft new disclosure rules in light of the Citizens United Case, the group spoke with one voice—and the message they delivered was a resounding “no.”

Eleven U.S. Senators, Sheldon Whitehouse, Jeanne Shaheen, Al Franken, Jeff Merkley, Tom Udall, Sherrod Brown, Michael Bennet, Chuck Schumer, Barbara Boxer, Bernard Sanders and Kirsten Gillibrand, beg to differ. They submitted comments to the Commission urging the agency to “use its rulemaking authority to implement broad disclosure and disclaimer requirements.”

Surely, if it had wanted to, the Federal Election Commission could have found one witness to testify that the agency has the authority to draft new disclosure and disclaimer rules to ensure transparency in post-Citizens United world. It could have found one witness to suggest how the agency could draft rules that would, as the Supreme Court stated in the Citizens United case, “[enable] the electorate to make informed decisions and give proper weight to different speakers and messages.”

In truth, even with a balanced panel of witnesses, the agency probably would have failed to adopt comprehensive disclosure and disclaimer rules. But, by silencing the voices that favor transparency, the FEC willingly abdicated all responsibility to foster open and honest debate.

Correction: The FEC does not have to invite any group to testify, rather, the agency publishes notice “to advise interested persons and to invite their participation.” Nevertheless, it seems pro-transparency groups would have received a chilly reception at the hearing. As one FEC commissioner stated, “all discussion of this critical issue [of disclosure and disclaimer rules] was banned from the NPRM.” Moreover, Commissioner Weintraub’s motion to advance Chris Van Hollen’s proposed rulemaking on disclosure of Independent Expenditures by non political committees deadlocked at the FEC while the motion to make rules allowing corporations and unions to make Independent Expenditures passed by a vote of 5-1. It remains that the agency is unwilling to proffer pro-disclosure rules. Hopefully, Congress will pass the DISCLOSE Act, thereby requiring the FEC to act.