In light of the recent failure of gun control legislation despite widespread public support for change, most Americans would be hard-pressed to name a government entity more dysfunctional than Congress. But that is only because most people have never heard of the Federal Election Commission, which is more out of touch with common sentiment than the House and Senate combined.

Voters have become cynical about elected leaders, believing many are bought and paid for. While decrying this public perception, politicians on both sides of the aisle have little interest in taking any concrete action to improve the situation.

Sen. John McCain (R-Ariz.) calls the FEC the “little agency that can’t”; perhaps more aptly, it is the party stalwarts who won’t. Why? Since 2008, the commission has been crippled by partisan gridlock. In particular, the three Republican commissioners — Caroline Hunter, Donald McGahn and Matthew Petersen — openly defy their statutory obligations and regularly spurn the enforcement recommendations of the FEC general counsel.

McGahn is particularly aggressive in politicizing the agency, seemingly attempting to render it impotent. He has said the job of an FEC commissioner is to make sure his political party’s interests “are taken care of” and has boasted, “I’m not enforcing the law as Congress passed it. … I plead guilty as charged.” Yet enforcement of our campaign finance laws is critical to instilling confidence in the integrity of public officials and federal elections.

This attitude results in a real-world negative impact. In 2012, the FEC deadlocked on 18.5 percent of its enforcement-related votes, effectively neutering the agency’s enforcement function. For comparison, between 2003 and 2007, the average was 1 percent. As a result, candidates, political committees and outside groups routinely flout campaign finance law, secure in the knowledge they are unlikely to face any consequences. Even when the agency does stir itself to act, the paltry fines generally assessed can be written off as simply a cost of doing business.

If the agency’s record of inaction is not sufficient to stir Congress and the administration to act, the vacancies on the panel should be. As of Tuesday, not only is the FEC one commissioner short of the usual six, but all five remaining commissioners are sitting despite expired terms. It is up to President Barack Obama to nominate new commissioners, but after one failed nomination early in his first term, he hasn’t so much as floated another potential nominee.

At the beginning of 2012, my organization, Citizens for Responsibility and Ethics in Washington, and a number of allied good government groups asked the president to appoint new commissioners to fix the FEC. When the president failed to heed our call, we used the White House petition process to have more than 25,000 Americans join us in asking the administration to act, but received pabulum in response. We renewed our request this past December, but still nothing.

Well into year five of his presidency, Obama has failed to take any action to enforce — much less reform — our campaign finance laws. Although the president campaigned on the issue of campaign finance reform before winning his first term and condemned the Supreme Court’s disastrous Citizens United decision in a State of the Union address, he has done little to address the problems.

With the FEC asleep at the wheel, CREW has been working to hold those who break campaign finance law accountable by filing complaints against groups such as Americans for Job Security, the American Action Network and Karl Rove’s Crossroads GPS. There is little hope, however, given the partisan deadlock, that the commission will take action in the face of even egregious violations. Instead, we aim for increased public awareness of campaign finance violations to spur voters to demand action.

While it is easy to disparage the FEC, what we need to do is fix it. The White House should be working with campaign finance reform advocates to nominate a full slate of nonpartisan, no-nonsense candidates to the commission, and the Senate should vote on them. During his first campaign, the president famously stated, “We are the ones we’ve been waiting for.” What are we waiting for now?

Construing the state law as “a mechanism by which ... the citizens of the Commonwealth” holds their public officials accountable, the Supreme Court concluded its effect on nonresident was merely “incidental.”  Moreover, the Court reasoned, nonresident can access at least some state records Virginia makes available for inspection.  Equally as troubling, the Court found no constitutional right to information provided by FOIA laws.  In response to the claim that the state FOIA violates the Commerce Clause by regulating or burdening interstate commerce, the Court held any “market” for Virginia’s public records “is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer.”

The Supreme Court’s exceedingly myopic view of the role state documents play in national issues is entirely out of touch with reality.  As the line between state and national politics increasingly has blurred, state records play an even greater role in shedding light on candidates for national office.  CREW has used Florida’s state FOIA law to obtain information about any number of federal officials, including David Rivera, who was subject to a state criminal investigation. 

Moreover, as the amicus brief filed by CREW and others pointed out, Virginia’s records are useful in a host of other contexts, from medical research to genealogy, that are not cabined by state boundaries.   Indeed, for those of us living in the Washington, D.C. area, the boundaries between Virginia, Maryland, and the District of Columbia are nearly invisible.

Perhaps the Court’s greatest error was its failure to recognize the full impact of the Digital Age, where information flows freely through the Internet, a medium that recognizes no state or country lines.  For today’s citizens of the world, with their ready access to computers, the notion that information is owned and controlled by the state in which it physically resides is both irrelevant and false.   To be sure, the McBurney decision makes passing reference to the impact of the Internet, finding the requirement that nonresident do Internet research in lieu of using Virginia’s FOIA process imposes no significant burden.  But this begs the question, as a wealth of information under Virginia’s control exists only on paper and, as such, cannot be accessed through the Internet.

The McBurney decision strikes a blow to transparency and harkens back to an age when people identified more as citizens of their state of residence than citizens of the United States.  Just as in Citizens United, the Supreme Court once again has shown how out of touch it is with reality.  So once again, the solution lies with the legislature, this time that of the Commonwealth of Virginia.

Yet the government body charged with this oversight, the Federal Election Commission (FEC), is regularly derided as the most dysfunctional agency in Washington. Further, as of April 30, 2013, the Commission will have one vacancy and the terms of the remaining five Commissioners will have expired, making an examination of the agency’s future particularly timely.

Join a group of legal and campaign finance experts for a thought-provoking panel discussion on how the FEC might be improved, focusing on education, compliance, and enforcement.

Opening remarks will be delivered by Professor Spencer Overton, Director of the George Washington University Political Law Studies Initiative.

Panelists include:

• Richard Briffault, Columbia Law School
• Laurence E. Gold, Trister, Ross, Schadler & Gold
• Lawrence M. Noble, Americans for Campaign Reform
• Bradley A. Smith, Capital University Law School
• Scott E. Thomas, Dickstein Shapiro
• Eric Wang, Americans for Prosperity

The panel will be moderated by CREW Executive Director Melanie Sloan and William McGinley of Patton Boggs.

Tuesday, April 30, 2013
12:15 – 2:00 p.m.

George Washington University Law School
Jacob Burns Moot Court Room
2000 H Street, N.W. Washington, D.C. 20052

Watch the panel here:

Yesterday Senator Elizabeth Warren (D-MA), member of the Senate Committee on Banking, Housing and Urban Affairs,  and Rep. Elijah E. Cummings (D-MD), Ranking Member of the House Committee on Oversight and Government Reform, sent a letter to Federal Reserve Chairman Ben Bernanke and Comptroller of the Currency (OCC) Thomas Curry challenging their decision to stiff Congress by not providing requested documents relating to violations of federal and state laws by mortgage servicing companies. 

Welcome to our world, where agencies routinely deny FOIA requests based on similarly outrageous exemption claims.

In this case, the Federal Reserve and the OCC are refusing to produce documents from their investigations of specific mortgage servicers for illegal foreclosures, inflated fees, or fraudulent court documents.  According to the agencies, these documents contain “trade secrets” that must be withheld from Congress to preserve their exempt status under the FOIA.  To the contrary, as the letter by Sen. Warren and Rep. Cummings points out, “Breaking the law is not a corporate trade secret.” 

While the agencies’ response is outrageous in its own right, it highlights once again how out of step agencies are with the president’s commitment to a more transparent and accountable government.  Both Congress and the public clearly have compelling and legitimate interests in the details of the government’s finding that the statutory violations committed by 14 mortgage servicers had “widespread consequences for the national housing market and borrowers.”  What could possibly be privileged about the specific violations specific banks were found to have committed?  The answer, clearly, is nothing. 

Sen. Warren and Rep. Cummings originally requested the documents “so that sufficient transparency exists when it can have the most impact on building public confidence.”  That confidence has been badly eroded “by a widespread concern that large financial institutions are not held fully to account when they break the rules.”  The information the members sought would go a long way toward restoring some of that confidence.  This is the precise kind of openness in government to which President Obama committed his administration when he announced on the first day of his first term “[a] democracy requires accountability, and accountability requires transparency.”

The response of the OCC and the Federal Reserve is wrong on so many levels.  As a legal matter, there is no merit to the position the requested information is a trade secret.  As a policy matter, there is no merit to preventing Congress from performing its legitimate oversight role.  And as a matter of plain common sense, it is nothing short of ridiculous to withhold information that would help restore public confidence in the housing market, which is such a critical element of any national recovery plan.  We can only hope that reason prevails, but so far the signs are not promising.

We applaud Sen. Whitehouse for identifying one of the biggest problems in this area, the lack of any effective enforcement by the IRS, DOJ, and the Federal Election Commission (FEC), which has allowed a stream of anonymous money into our elections.

Yesterday’s hearing focused on the failure of the IRS and DOJ to prosecute violations of two laws that have been routinely flouted since the Supreme Court’s disasterous ruling in Citizens United. The Tax Code grants tax-exempt status only to 501(c)(4) groups that are operated exclusively for the promotion of social welfare.

Some dark money groups have made false statements in their applications for 501(c)(4) status, telling the IRS they would not engage in any political activity, then running political ads as soon as they get tax-exempt status. In addition, some super PACs and their supporters have violated the law forbidding conduit contributions by using shell corporations to conceal the donor’s identity.

Despite the blatant nature of these violations, the IRS and DOJ aren’t prosecuting anyone, and would not even say at the hearing if they are conducting any investigations. As Senator Whitehouse said, by failing to prosecute these violations, the IRS and DOJ appear to be “complicit in the mockery that is made of these tax laws.”

Sen. Whitehouse identified an even larger problem caused by the IRS’s regulations implementing section 501(c)(4) of the Code. While the Code provides tax-exempt status for groups “operated exclusively” for social welfare purposes, IRS regulations provide such groups need only be “primarily engaged” in social welfare. This has created an enormous loophole that many groups have exploited, reasoning they still meet the definition of a 501(c)(4) group if they spend up to 49 percent of their annual revenue on political activities.

In Sen. Whitehouse’s words:

“the IRS has taken one of the clearer statutes passed by Congress and through its regulations has so defanged and confused the law as to make it virtually unenforceable by the agency.”

CREW agrees, and has taken steps in recent months to close this loophole. In February, CREW and former congressional candidate Dr. David Gill sued the IRS for flouting the statute, and just yesterday, CREW filed a petition for rulemaking calling on the IRS to amend its regulations.

We are heartened by Sen. Whitehouse’s first steps, and look forward to more oversight hearings and hopefully legislation that will prohibit 501(c)(4) groups from using anonymous funds to engage in political activities – activities the Tax Code, but not IRS regulations, now ban.

CREW’s FOIA Win

The D.C. Circuit handed CREW a big win in a Freedom of Information Act (FOIA) lawsuit we brought against the Federal Election Commission (FEC).  At issue was the meaning of the requirement that agencies make a “determination” within 20 days of a FOIA request.  The FEC, joined by the Department of Justice, argued all an agency need do under this provision is advise the requester of its intent to respond at some future date by producing non-exempt documents and claiming exemptions.  Siding with CREW, the D.C. Circuit disagreed, unanimously holding that if government agencies do not tell requesters whether they will fulfill the request within 20 days, requestors may sue the agency immediately without filing an administrative appeal. For more details, click here.

Calling Out Dark Money

On Wednesday, CREW called on the FEC to investigate whether a shady group named Checks and Balances for Economic Growth (CBEG) violated campaign finance laws.  Despite spending at least $896,290 broadcasting two political ads attacking President Obama and Sen. Sherrod Brown (D-OH) just before last year’s election, CBEG failed to file any of the required campaign finance disclosure reports.  You can read more about the complaint, as well as a related complaint we filed with the IRS, here.

GAO Misses the Mark on Political Intelligence

The General Accountability Office (GAO) released its long awaited report on the shadowy world of political intelligence firms.  The GAO report was requested as part of the STOCK Act enacted last year in effort to better understand the industry.  Unfortunately, the report did little to answer questions concerning the scope and influence of the industry, despite a widespread belief it is flourishing and clients are reaping benefits in the stock market.  In CREW’s view, the report’s biggest shortcoming is its lack of input from congressional and agency staff.

Post Weighs in on OLC Memos

For your editorial of the week, check out the Washington Post’s excellent piece calling on the Justice Department’s Office of Legal Counsel (OLC) to publicly release its legal memoranda, as CREW has long urged.  The editorial highlights a Freedom of Information Act lawsuit against the Department of Justice seeking an OLC memo authorizing the FBI to surveil Americans without a warrant and approvingly cites an amicus brief written by CREW and submitted on behalf of several other organizations, including the Post.  CREW argues the public has a critical interest in knowing how the executive branch interprets the law.

Finally, for those of you who remember the old ditty “I’m just a bill,” this week Jon Stewart provided an updated version on how a bill too often becomes law today. 

Each year, public corporations will send out documents outlining shareholder proposals up for proxy vote. Those concerned about the corrosive effects of money in politics should read these carefully.

“Item 6” in the material outlining Verizon’s shareholder meeting next month concerns the full disclosure of the company’s lobbying activities and communications. The proposal also calls for Verizon to disclose “membership in and payments to any tax-exempt organization that writes and endorses model legislation” – such as the American Legislative Exchange Council, aka ALEC.

Unsurprisingly, Verizon’s Board of Directors recommends that shareholder vote against this proposal. CREW urges Verizon shareholders to vote “yes.”

If you hold stock in Verizon, it is time to let your voice be heard.

In explaining their opposition to the proposal, the Verizon Board of Directors claims any additional disclosure (beyond the bare-bones requirements in place today) would provide “little or no value to shareholders.” That’s ridiculous.

As concerned investors, shareholders have the right to know how corporate treasury funds are being used to influence our votes.

In a post-Citizens United world, money in the corporate treasury can be freely spent backing federal candidates. CREW has already exposed corporations that funnel money through opaque trade associations, such as the Chamber of Commerce, to hide their efforts to influence elections, thereby thwarting accountability. Most importantly, shareholders deserve to know whether the corporations in which they invest are supporting political candidates.

If you are a Verizon shareholder, vote yes on “Item 6” and take a stand for increased transparency of lobbying and electioneering communications. If you own stock in other corporations, be on the lookout for similar shareholder proposals or, better yet, offer up your own.

The FEC, joined by the Department of Justice (DOJ), had argued all an agency need do under this provision is advise the requester the agency intends to respond at some future date by producing non-exempt documents and claiming exemptions.  The D.C. Circuit disagreed, ruling — as CREW had argued — the FOIA requires agencies within 20 days to review responsive documents and tell requesters what they are producing, what they are withholding, and why.

So what does this mean and why does this matter?  This ruling means the FOIA works as we have always understood, at least before the FEC and DOJ tried to gut it. 

Congress very purposefully required agencies to process requests within tight deadlines — first 10 days, later amended to 20 days — recognizing that delay in access often is tantamount to denial.  Had the government’s distorted view of the statute prevailed, requesters would have been at the mercy of agencies, unable to go into court for months or possibly years while they waited to be told what the agency was withholding and why.  As the D.C. Circuit recognized, its reading of “determination” “harmonizes…a comprehensive scheme that encourages prompt request-processing and agency accountability.”

The question that still needs to be answered is why the Justice Department took such a radical position on the meaning of the FOIA.  This position is at odds with the department’s own internal guidance and the view that has prevailed since time limits were added to the statute, and would deny requesters timely access to courts when agencies refuse to comply with their obligations. 

We’ve said it before and we’ll say it again: This is not the more accountable and transparent government both President Obama and Attorney General Holder promised us over four years ago.

On the ethics front, we found one more example of why Americans hold Congress in such low esteem.  Rep. Louie Gohmert (R-TX) appears to have pulled a classic “I’m above the law” stunt all too familiar in Washington.  According to a news report, Rep. Gohmert received a citation for parking his SUV in a spot reserved for National Park Service vehicles.  He then removed the ticket from his windshield and placed it on a police car along with his business card with a note saying: “Oversight of Park Service is my job!  Natural Resources Thus the Congressional Plate in window.”  The police report notes Rep. Gohmert was “rude and irate,” and “ranting.”  Further, Rep. Gohmert told an officer he “did not have time to deal with the issue,” and said to officers, “I left my business card with the ticket and I am not paying for the ticket.” Accordingly, CREW filed a complaint with the Office of Congressional Ethics (OCE) against Rep. Gohmert for conduct that reflects discreditably upon the House.

Former presidential candidate and sitting Congresswoman Michele Bachmann (R-MN) appears to be facing increased scrutiny from the OCE for her campaign’s handling of campaign cash.  The allegations of impropriety come from none other than her former campaign staffers, and involve “improper transfer of funds and under-the-table payments” by Bachmann’s presidential campaign.

Rep. Don Young (R-AK), a longtime member of CREW’s “Most Corrupt,” made news this week for a rather unsavory remark to a local radio station:  “My father had a ranch; we used to have 50-60 wetbacks to pick tomatoes.”  Something tells us this kind of comment won’t help the party’s efforts to woo more Hispanics into the party’s fold.

Did you listen to the Supreme Court’s oral arguments on the Defense of Marriage Act (DOMA)?  We certainly did.  CREW filed a friend-of-the-court brief in United States v. Windsor, a lawsuit argued before the Supreme Court Wednesday challenging the constitutionality of the 1996 law. CREW’s brief, co-authored with George Washington University Law School Professor Alan Morrison, points out the perverse effects DOMA has on ethics, tax, and bankruptcy laws by recognizing only opposite-sex marriages.  The First and Second Circuit Courts cited CREW’s arguments in striking down DOMA.  As an interesting side note, it turns out House Republicans’ defense of DOMA has racked up taxpayer expenses six times as much as they originally anticipated.  Money well spent in a time of fiscal austerity?

On Thursday, President Obama signed an executive order creating a bipartisan commission tasked with formulating solutions to, among other things, cutting down on long lines at the voting booth.  The results of the commission’s final report will be a welcome means to further the dialogue on how to repair some of our election system’s most systemic flaws.

Finally, if you’re looking for the newspaper opinion of the week as food for thought, check out E.J. Dionne Jr.’s piece from Wednesday in the Washington Post, which ponders the seeming inconsistency in supporting unlimited contributions while being anti-Citizens United.  The question posed:  “Are opponents of Citizens United and the new super PAC world required to disown those who use their wealth to fight for causes [they] believe in?”  Check it out and share your thoughts.

See you next week.

The former representative first baffled us with a series of byzantine financial plots that, once we sorted through them, essentially amounted to overly complicated attempts at tax evasion and money laundering. Hey, that’s Florida for you. Par for the course.

Last year, Rep. Rivera again confounded us when news emerged of his clumsy attempts to allegedly funnel money to Justin Lamar Sternad, a Democratic candidate who was running in the primary to oppose him.

The Miami Herald blew the whistle after campaign vendors said Rep. Rivera himself had been involved in commissioning and paying for Mr. Sternad’s mailers. That Rep. Rivera – he’s a real criminal mastermind. He lost his bid for re-election after voters in his district apparently decided they didn’t need the hassle. Mr. Sternad pleaded guilty to campaign finance violations earlier this month. Rep. Rivera hasn’t been charged, but federal investigators have been looking into his role.

Of course, there’s a twist. As federal investigators attempted to investigate the election case, a key witness vanished on the day she was supposed to talk to them. Ana Alliegro, a political operative and good friend of Rep. Rivera’s who had worked as Mr. Sternad’s campaign manager, has been missing for more than six months.

Oh, she sent out a few Tweets right before the election – “Going to watch SkyFall...super excited!” she chirped happily on November 3 – but nothing since. Earlier this month, the Miami Herald reported her whereabouts “aren’t known to the general public.” There’s no warrant for her arrest, but nonetheless, it’s clear the self-described “conservative bad girl” is on the lam.

Wild theories abound, at least among those who have been following the bizarre tale. Where in the world is Ana Alliegro? This week, an answer appears to be emerging and it is…Nicaragua. No, really. A Miami-based Spanish language television station is reporting Ms. Alliegro entered Nicaragua on September 6, and there is no record of her subsequently leaving the country. Apparently, we all should have thought of this possibility because Ms. Alliegro’s father reportedly once helped train contra rebels there. Against the surreal backdrop of Rep. Rivera’s wrongdoing, this almost manages to make sense.

Still, there are questions to ponder. When Rep. Rivera and his cohorts embarked on this scheme, were they trying to create the weirdest congressional ethics scandal ever? Did he have a bet with former Rep. Jesse Jackson (D-IL) that can explain why Rep. Jackson’s case featured a sting involving a taxidermist, stuffed elk heads, and Michael Jackson memorabilia?

And most importantly, how on earth are the members who make CREW’s Most Corrupt members of Congress list this year going to top this?

There was a fair amount of ethics-related news this week, some serious, some comical, and some right out of a novel.

CREW released a report documenting how the National Mining Association influences Capitol Hill by spending millions of dollars on federal lobbying to, among other things, keep mining firms exempt from paying royalties on what they extract from federal lands.  Efforts are underway to amend a law dating back to 1872 to require mining firms to pay royalties, which some estimate could generate as much as $2 billion dollars each year.  As CREW Executive Director Melanie Sloan stated, it’s “ironic that even in light of the current budget debacle, Congress can’t agree to scrap an 1872 law preventing the government from raising hundreds of millions — if not billions — of dollars in revenue.”

The House Ethics Committee announced the formation of investigative subcommittees to probe the actions of two lawmakers, Reps. Rob Andrews (D-NJ) and Don Young (R-AK).  The inquiry into Rep. Andrews involves his alleged use of campaign funds to pay for personal travel, misuse of official resources, and possible false statements to federal officials.  Rep. Young’s alleged misdeeds involve improper gifts, the misuse of campaign funds and false statements.  Both lawmakers have long been on CREW’s radar — we have filed complaints on both members — and both have the inglorious distinction of being named to our “Most Corrupt” report.

There was another new twist in the scandal surrounding Sen. Menendez.  On Friday, the Washington Post reported that a top law enforcement official in the Dominican Republic said a local lawyer reported being paid $5,000 by the conservative website the Daily Caller to find prostitutes who would lie and say they had been paid to have sex with the senator.  Naturally, the Daily Caller denies all.

The Federal Election Commission (FEC) did some house-cleaning this week, terminating some 300 super PACs registered with the commission, which have been proliferating ever since the Supreme Court’s decision in Citizens United.  Stephen Colbert’s “Americans for a Better Tomorrow, Tomorrow” super PAC no doubt encouraged dozens, if not hundreds, of other faux super PACs in an effort to highlight the absurdity of the present campaign finance enforcement system.

Speaking of Stephen Colbert, he lent a hand in christening the Campaign Legal Center’s “Ham Rove Memorial Conference Room” by offering up videotaped remarks.  The event also saw the unveiling of a larger-than-life portrait of the popular Comedy Central host, which will hang over the mantel at the Legal Center.

Finally, an interesting tidbit from the Republican National Committee’s so-called “autopsy” report released this week caught our eye:

"TV spending is out of control. Outside groups spent approximately $1 billion on TV ads in swing states in the final six months of the 2012 campaign. Despite the extraordinary amount of money that was invested in TV by outside groups in 2012, the final results of the election barely differed from the polls six months earlier. There are lots of arguments for why this is the case, and we don't believe we lost because of third-party TV ads. However, the pendulum has swung too far when it comes to spending on TV ads."

One would hope such a conclusion would lead to a reexamination of how we spend (or rather, waste) billions of dollars in our elections, but we’re not holding our breath.

See you next week.

As we stated in our letter to the committee earlier this week, the bill includes a number of positive changes to the FOIA, including enhancements to the authority of the Office of Government Information Services (OGIS); directives for agencies to better use modern technology; and greater reporting requirements for agencies, OGIS, and the attorney general.  In addition, during yesterday’s mark-up, Rep. Tammy Duckworth (D-IL) successfully introduced an amendment requiring any federal agency seeking to assess fees after the 20-day deadline has passed to explain to the requester in writing why the agency has met the “unusual or exceptional circumstances” provision of the FOIA that justifies fees after the 20-day period.  Without this justification, agencies would be prohibited from assessing fees.  Rep. John Mica (R-FL) succeeded in having the committee accept his amendment, which would require agency inspector generals to review their agencies’ compliance with the FOIA and would empower them to recommend disciplinary action, where appropriate.  At present, there is virtually no oversight of agency compliance with the FOIA outside of the courts.

While these proposals are welcome, the bill leaves untouched the nine FOIA exemptions that permit agencies to withhold information from the public.  Agency abuse of these exemptions has deprived the public of a wealth of valuable information, from closed investigative files of members of Congress to legal memoranda from DOJ’s Office of Legal Counsel justifying controversial policies like the targeted killing of Americans abroad.  You can read CREW’s full letter here for a more detailed analysis, but one glaring example of this abuse is how federal agencies rely extensively on Exemption 5 to withhold deliberative process material, the very material that would explain why the government has taken certain actions.  Despite acknowledgement of this abuse by Attorney General Eric Holder and his March 2009 directive to agencies encouraging greater disclosure, little has changed.

These abuses are not without solutions.  For example, adding a balancing test to Exemption 5 that would require agencies (and the courts) to balance the public interest in disclosure against the agency’s claimed need for secrecy will lead to greater transparency and accountability, the goals Congress intended the FOIA to serve.  Any serious and comprehensive effort to improve the FOIA must look at the entire statute, and not merely selected provisions that are least likely to create controversy.

As this legislation moves forward, CREW will be working diligently to produce a well-thought-out, comprehensive approach to amending the FOIA to ensure all Americans have the opportunity to learn what their government is up to and why.  Stay tuned.

Election Spending

The Center for Responsive Politics put a definitive tally on total spending in the 2012 elections, which it calculates comes to a whopping $6.3 billion, the most expensive election cycle ever. While President Obama’s re-election campaign outspent the campaigns of all Republican presidential rivals put together, spending by outside groups heavily favored Republicans.

In the “bonehead idea of the week category,” conservative lawyers called for the elimination of the Federal Election Commission (FEC) and further legal challenges to “lessen the teeth” of the agency — as if it could be any less than it is now. While CREW continually has called into question the existence of the FEC given how dysfunctional it is, it defies commonsense — especially in a post-Citizens United world — to do anything but strengthen the FEC through structural reforms and by appointing commissioners who will actually enforce the law.

Senator Menendez

Dark clouds continue to swirl over the head of Sen. Robert Menendez (D-NJ), and no, not for what appears to be an elaborate smear campaign concerning prostitutes. Sen. Menendez has been on CREW’s radar for some time now, stemming from a tipster who claimed Sen. Menendez had engaged in criminal acts in the Dominican Republic. While the original charges involving prostitution now appear to be lies ginned up as part of an elaborate smear campaign, a host of other alleged improprieties have surfaced. Now it appears a federal grand jury in Miami may be, emphasis on “may be,” investigating the senator for his role in advocating for the business interests of a wealthy donor and friend.

Sunshine Week

In case you missed it, CREW held a Sunshine Week event to discuss whether and when the government is justified in keeping secret opinions authored by the Office of Legal Counsel (OLC), such as those authorizing the killing of Americans abroad suspected of ties to terrorist groups. There was widespread agreement that by refusing to publicly release OLC memoranda, the U.S. government has effectively created a set of secret law that hurts democracy. Sen. Ron Wyden (D-OR), who has spent the past two years pushing for the release of OLC memoranda, opened the discussion.

You can watch the full panel event here.

In other Sunshine Week news, the Associated Press released a report detailing how the U.S. government, led by the Pentagon and CIA, censored in the name of national security files that the public requested last year under the Freedom of Information Act (FOIA) more often than at any time since President Barack Obama took office. In addition, the Center for Effective Government (formally OMB Watch) released a report documenting how, among other things, federal agencies are processing more requests but with far more redactions.

Sunshine week featured an array of other informative panel discussions, including a U.S. Senate Judiciary Committee hearing entitled, “TIME CHANGE: We the People: Fulfilling the Promise of Open Government Five Years After The OPEN Government Act,” which aimed to strengthen FOIA and created a 20-day period of compliance for FOIA requests. Among the witnesses appearing before the committee was Thomas Blanton, the director of the National Security Archive.

Mr. Blanton shared the results of a government-wide audit, which indicated a majority of federal agencies have not updated their FOIA regulations to comply with legislation, which became law in 2007, or President Barack Obama and Attorney General Eric Holder’s policy changes in 2009. Mr. Blanton went further by taking Department of Justice witness Melanie Pustay to task for misrepresenting the true state of FOIA in the federal government and insisting outdated agency FOIA regulations do not need to be updated to comply with the 2007 FOIA amendments. You can watch the full hearing here.

Thank You, Senator Levin

Lastly, and sadly, an item overlooked from last week. The Senate will be losing a longtime dedicated public servant, Sen. Carl Levin (D-MI), who announced he will not seek re-election in 2014. Sen. Levin has been a champion of shedding light on corporate tax avoidance schemes, and has pledged to double down on these efforts to bring an end to this drain on the U.S. Treasury. More importantly to CREW, Sen. Levin, as chairman of the Permanent Subcommittee on Investigations, pledged to dedicate his final years probing the failure of the IRS to enforce tax laws and stem the flood of hundreds of millions of secret dollars flowing into our elections. We look forward to a fruitful final two years from the senator and applaud him for his service.

There was widespread agreement that by refusing to publicly release OLC memoranda, the U.S. government has effectively created a set of secret law that hurts democracy.

Sen. Ron Wyden (D-OR), who has spent the past two years pushing for the release of OLC memoranda, opened the discussion.  Among his insights: “the Congress and the American people need to know what the executive branch thinks the law and the Constitution allow them to do;”   “American laws shouldn’t be public only when the government thinks it’s convenient;” and “Every American has the right to know when their government believes it has the right to kill them.”  Sen. Wyden also said he has begun reading the OLC memos on drone strikes the Senate Select Committee on Intelligence received from the White House, and is working to make some of the information public.

Next, CREW Chief Counsel Anne Weismann moderated a panel of experts including Jameel Jaffer, Director of the ACLU’s Center for Democracy; David Sobel, Senior Counsel for the Electronic Frontier Foundation; and New York Times correspondent Charlie Savage.  In his discussion of the news media’s interest in public release of OLC opinions, Mr. Savage questioned the executive branch’s reliance on earlier secret OLC memoranda to justify later decisions to keep memos secret.  To illustrate his point, he held up a copy of a highly redacted OLC opinion received by the New York Times — and cited by a later memo — in which nearly the entire body of the document was blacked out.

Mr. Jaffer and Mr. Sobel, who are both involved in litigation seeking access to OLC memoranda under the Freedom of Information Act, discussed their lawsuits. Mr. Jaffer noted that while lawsuits are not always successful, “often the litigation is as useful in forcing the government to defend its withholdings as it is in forcing the government to disclose documents.”

The second panel, moderated by Professor Morrison, focused on the internal workings of OLC and whether its legal opinions should be publicly available — and with what limitations.  Constitutional scholar Bruce Fein said, “the consent of the governed can’t be given if the governed doesn’t know what their governors are doing.”  He argued that “transparency is inherently the rule and secrecy is the exception.”

Mr. Fein, along with constitutional scholar Louis Fisher and former Assistant Attorney General for OLC Randolph Moss, dismissed the notion that making OLC memos public might have a “chilling effect” on the quality of legal advice given to the president.  “I have never heard anyone insinuate that they would not give candid advice to the president because they worried about a leak out to the public,” said Mr. Fein.

Yesterday’s talk was just one step in the effort to push the executive branch to make OLC memos public.  CREW will continue working with Sen. Wyden, Professor Morrison, and all of the panelists on this important issue.

Last month, former Democratic congressional candidate Dr. David Gill, his campaign committee, and my organization, Citizens for Responsibility and Ethics in Washington (CREW), sued the IRS for misinterpreting the Tax Code and creating a loophole that allows some tax-exempt organizations to spend hundreds of millions of dollars on political activity while keeping their donors secret.

According to federal law, groups seeking tax exempt status under section 501(c)(4) must be “operated exclusively for the promotion of social welfare.”  The IRS, however, issued a regulation undermining this clear language by requiring such groups only to be “primarily engaged” in promoting social welfare. This has allowed some groups to conclude up to 49 percent of their overall activities may be political. The lawsuit simply asks the court to require the IRS to interpret and apply the law the way Congress wrote it.

In criticizing the lawsuit, Eric Wang of the Center for Competitive Politics, which opposes most campaign finance regulation, either ignores or fails to grasp the basis for the lawsuit, the facts upon which it is based, and CREW and Dr. Gill’s ultimate goal.

Mr. Wang claims the lawsuit is based on the notion political advocacy cannot promote better government and thus advance social welfare.  This is wrong.  Rather, our complaint alleges political campaign activity in support of or in opposition to a candidate for office does not promote social welfare in a way that justifies providing tax-exempt status and the ability to keep the identities of donors secret.

This idea did not originate with CREW, Dr. Gill, and the lawsuit.  Mr. Wang may not know it, but the IRS has specifically stated: “The promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”

Contrary to Mr. Wang’s assertion, CREW and Dr. Gill are not arguing political activity has no social value. Public participation in the political process unquestionably is a central principle of democracy. But allowing wealthy individuals and corporations to cloak their political activities behind bogus social welfare organizations — with no accountability and in violation of federal law — does not promote democracy.

Mr. Wang also seems unfamiliar with the American Action Network’s (AAN) actions in Dr. Gill’s race for Congress. In 2012, AAN poured nearly $1.5 million into Dr. Gill’s race, more than either candidate spent. Most of AAN’s money was spent on television advertisements falsely claiming Dr. Gill would eliminate Medicare and depicting him as a “mad scientist.” Not only did these ads cause Dr. Gill to lose the race by a scant 1,002 votes, they damaged his reputation and caused him economic harm.

The public has no idea who ultimately paid for the ads because AAN is a 501(c)(4) group and does not have to disclose its donors. But insurance giant Aetna accidentally disclosed it gave AAN $3.3 million in 2011, and PhRMA, the drug manufacturers’ trade association, admitted on its tax return it gave $4.5 million to the group in 2010. They likely targeted Dr. Gill because he supports a single-payer health care plan, which AAN and PhRMA oppose.

How did AAN’s false ads promote social welfare?

Mr. Wang correctly notes that if the lawsuit is successful, 501(c)(4) groups engaging in political activities would have to disclose their donors and would lose their tax-exempt status. What’s wrong with that? AAN could become a super PAC and spend as much money as it likes on political ads.

Of course, that is not nearly as attractive an option. Super PACs have to disclose their donors, and those who finance AAN’s activities want to operate in stealth. Companies like Aetna don’t run political ads themselves because they fear alienating their customers. Far better to funnel money through groups like AAN, which can do the dirty work for them, like impugning the reputation of a respected emergency room physician like Dr. Gill.

It is allowing anonymous donors to co-opt our elections that is “fundamentally at odds with the basic notions of democratic government,” not our efforts to stop it.

Op-ed originally appeared in The Hill on March 13, 2013

If you’re in Washington, you can join CREW and a group of legal, media, academic, and government experts for a thought-provoking discussion on whether and when the government is justified in keeping Office of Legal Counsel (OLC) opinions secret, and the repercussions a body of secret law present to a democracy.

Opening remarks will be made by Sen. Ron Wyden (D-OR), an outspoken critic of the administration’s refusal to make public the rationale for its conclusion the government may lawfully kill certain Americans living abroad. Since the beginning of the War on Terror, the Department of Justice has increasingly relied on opinions drawn up in secret by the OLC to justify policies including extraordinary rendition, the use of torture, and the killing of Americans abroad.

For more background on the issue, click here.

Read more about our event panelists.

Wednesday, March 13, 2013
10:30 a.m. – 12:30 p.m.
George Washington University Law School
Jacob Burns Moot Court Room
2000 H Street, N.W.
Washington, D.C. 20052

The two panels are as follows:

Panel #1
Moderated by CREW Chief Counsel Anne Weismann

• Jameel Jaffer, Director of the ACLU’s Center for Democracy
• David Sobel, Senior Counsel for the Electronic Frontier Foundation
• Charlie Savage, New York Times Washington Correspondent

Panel #2
Moderated by Professor Alan Morrison

• Louis Fisher, Scholar in Residence of The Constitution Project
• Randolph Moss, Chair of the Regulatory and Government Affairs Department of Wilmer Hale and former Assistant Attorney General for OLC under President Clinton
• Bruce Fein, Constitutional Scholar and Former Associate Deputy Attorney General under President Reagan

There are numerous other events this week here and across the country, details of which can be found here.

Reviewing the charging documents in the case against former Rep. Jesse Jackson, Jr. (D-IL), it is impossible not to wonder how he got away with stealing his campaign funds for so long.  For a period of at least seven years, Rep. Jackson misused his campaign funds to buy personal items, including a $40,000 Rolex watch, mink capes, mounted elk heads, and Michael Jackson memorabilia, among other things.

Part of the problem is that since 2001, the Federal Election Commission (FEC) – the agency charged with monitoring campaign finances – has specifically permitted candidates to use campaign funds to pay family members.  What led the FEC to countenance this?  Ironically enough, a request made by Rep. Jackson.

In June 2001, Rep. Jackson sought a legal opinion from the FEC as to whether he could hire his wife, Sandi Jackson, as a consultant to provide fundraising and administrative support.

Federal law bars candidates from converting campaign funds to their personal use.  Basically, this means candidates can’t use campaign funds to cover expenses incurred irrespective of a run for office: groceries, clothing, mortgage payments, and the like.  Payments to family members are permitted only if they represent fair market value for bona fide campaign services.

In response to Rep. Jackson’s request, the commission issued a formal opinion concluding his campaign could, indeed, pay Ms. Jackson for her services.

An article appearing in Bloomberg noted that after receiving the green light, between 2001 and 2009, Rep. Jackson’s campaign paid Ms. Jackson $247,500.  The Jackson campaign seemingly tried to conceal the payments, sometimes reporting them as made to J. Donatella & Associates, the name of Ms. Jackson’s consulting firm, and other times reporting them as paid to Lee Stevens or Lee Steven at the J. Donatella firm.  The Jacksons’ oldest child is named Jessica Donatella; Sandi Jackson’s middle name is Lee and her maiden name is Stevens.

While not the first candidate to hire a relative for campaign work, Rep. Jackson was the first to obtain a legal opinion from the FEC blessing the practice.  Since then, numerous other campaigns have relied on the opinion to hire their own family members, often with negative consequences.  Former Reps. J.D. Hayworth (R-AZ) and John Doolittle (R-CA), whose careers were ended as a result of the Jack Abramoff scandal, hired their spouses as fundraisers.  Former Rep. Chris Cannon (R-UT) put six of his eight children — three of whom were under the age of 16 — on his campaign payroll.  More recently, former presidential candidate Ron Paul paid salaries to six family members.

In essence, the FEC opinion allowed the Jacksons to legally transfer campaign funds into their personal accounts.  Once on that path, it probably wasn’t a big step for Rep. Jackson to authorize payments to Ms. Jackson for work she hadn’t done.  Who would know and how would they get caught?

Last year, my organization, Citizens for Responsibility and Ethics in Washington, issued a report noting that 76 members of the House of Representatives had family members on the payrolls of their campaign committees or PACs.  As we noted then, payments to family members frequently raise questions of self-dealing and ought to be prohibited.  At least two states, Iowa and Louisiana, already ban such payments. 

The lack of meaningful controls on campaign funds presents other problems too.  Campaign committees routinely reimburse candidates and their family members thousands of dollars for expenses incurred and provide little if any documentation to show they were legitimately related to the campaign.  A former aide to Rep. Don Young (R-AK) told the FBI the congressman routinely used campaign funds for hunting trips, meals, and charter flights.  Rep. Rob Andrews (D-NJ) is currently under an ethics investigation for spending thousands of dollars on personal expenses, including a family trip to Scotland.  Other members of Congress, such as Rep. Paul Broun (R-GA), have loaned their campaigns money and charged usurious interest rates.

There are even fewer restrictions on members’ use of leadership PAC funds.  For instance, there is no ban on personal use of money in these accounts, meaning they can be treated as slush funds.  Unfortunately, Congress specifically prohibited the FEC from conducting the random audits that might reveal and deter misuse of funds.  Now, as long as FEC reports look good — even if they have been falsified — the FEC’s hands are tied.  Further, campaign committees are virtually the only tax-exempt organizations that never need to be independently audited.

Given the lack of effective oversight and enforcement, it isn’t likely Rep. Jackson is the only member of Congress who has illegally converted his campaign funds to his personal use — he is just one of the few who have been caught.

Melanie Sloan is executive director of Citizens for Responsibility and Ethics in Washington (CREW).

House Majority Whip Francis Underwood (played by Kevin Spacey) ruthlessly sets out to undermine a new presidential administration after he is passed over for secretary of state.  Underwood’s machinations are aided and abetted by his wife Claire, the head of a high-profile environmental non-profit, who uses her charity to boost her husband’s political ambitions.  For instance, a major natural gas company whose chief lobbyist used to work for Francis had promised a major donation to Claire’s organization with the expectation that her congressman husband would pull strings for the company once he became secretary of state.  The relationship between the Underwoods and the gas company may appear so brazenly corrupt that it could only have been conjured by a Hollywood screenwriter, but unfortunately, it’s all too common.

Take Gov. Bobby Jindal (R-LA), for example.  In March 2011, CREW found nine companies that contributed to Gov. Jindal’s campaign also had collectively pledged $790,000 to a charitable foundation headed by First Lady Supriya Jindal.  Combined, eight of those companies received at least $113.6 million in payments from the state between 2008 and 2011, and many had issues pending before the governor.  The Jindals, of course, aren’t the only politicians playing this game.  A children’s charity founded by disgraced former House Majority Leader Tom DeLay (R-TX) and his wife raised millions of dollars from big companies and corporate executives, including companies that routinely lobbied Congress.  The charity folded in 2010, as former Rep. DeLay faced criminal charges.  In addition, in 2010, the New York Times “found at least two dozen charities that lawmakers or their families helped create or run that routinely accept donations from businesses seeking to influence them.” 

Exploiting family ties isn’t the only way charities are used to exert influence in Washington.  Another common practice is for corporations to make charitable donations to charity in honor of lawmakers and other public officials. Indeed, this practice was also highlighted in House of Cards when the same gas company that had promised to donate to Claire Underwood’s charity financed a library named for Francis Underwood.  Just last week, CREW’s research found that in 2012, Google donated $25,000 to a non-profit in honor of Federal Trade Commission (FTC) chairman Jon Leibowitz.  Not only does Google have regulatory interests before the FTC, but the commission was actively investigating the company for antitrust violations at the time of the donation.  A spokesman for the FTC said that Chairman Leibowitz had no knowledge of Google’s involvement in the dinner honoring him, but it still “really looks terrible,” as CREW Executive Director Melanie Sloan told Bloomberg.  

Contributions such as Google’s are so routine that companies that lobby must file special disclosure forms listing them.  In 2011, CREW found AT&T had given $1.24 million to charities in honor of members of Congress and organizations affiliated with them between 2008 and 2010. In a new examination of AT&T’s 2011 and 2012 charitable donations, CREW found AT&T gave roughly $750,000 to charities in honor of members of Congress and organizations affiliated with them.  Three of the charities AT&T contributed to have direct ties to individual members of Congress or their families: the James E. Clyburn Research & Scholarship Foundation ($60,000), the Joe Baca Foundation ($12,000), and the Joe Barton Family Foundation ($5,000).   AT&T also directed donations to the U.S. Capitol Historical Society in honor of Rep. Edolphus Towns (D-NY) and Rep. Ralph Hall (R-TX), presumably to help fund their official portraits.

We’ll look forward to seeing what other shady Washington practices House of Cards exposes next season.

Sunshine Week is a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.

This year, CREW's Chief Counsel and resident FOIA expert Anne Weismann will be hosting a discussion on the Office of Legal Council (OLC) opinions, as well as appearing on two panels. 

Wednesday - March 13

@ George Washington University
OLC Memoranda: Does U.S. Secret Law Threaten Our Democracy?

Since the beginning of the War on Terror, the Department of Justice has increasingly relied on opinions drawn up in secret by the Office of Legal Counsel (OLC) to justify policies including extraordinary rendition, the use of torture, and the killing of Americans abroad. Join a group of legal, media, academic, and government experts for a thought-provoking discussion on whether and when the government is justified in keeping OLC opinions secret.

Legal, media, academic and government experts on two panels will discuss the government’s use of secret opinions by the Office of Legal Counsel in the war on terrorism and whether such secrecy is justified. Sen. Ron Wyden (D-Ore.) will present the opening remarks.

Details here

Friday - March 15

@ Newseum, Knight Conference Center
National Freedom of Information Day 

In morning sessions, OpenTheGovernment.org will present its 8th annual Sunshine Week examination of the state of openness in the federal government, focusing this year on outlook for the president’s second term. Also on the day’s agenda: a keynote discussion with First Amendment attorney Floyd Abrams; a discussion of the new documentary, “Whistleblowers”; the American Library Association will present its James Madison Award.

Details here.

Monday - March 18

@ American University Washington College of Law
6th Annual Freedom of Information Day Celebration

The Collaboration on Government Secrecy will host its sixth annual FOI Day with panel discussions on transparency issues, the legislative outlook, FOIA litigation and the U.S. Supreme Court’s Milner decision. The keynote will be given by Leonard Schaitman, assistant director of the Appellate Staff of the Department of Justice’s Civil Division since 1973, who also will receive the Robert Vaughn FOIA Legend Award.

Details here.

> CLICK HERE FOR MORE DETAILS ABOUT SUNSHINE WEEK 2013

A typical weeknight reception in Washington — open bar, hors d’oeuvres, a media-legal-political-tinged crowd. Wait, what’s missing? Oh, that’s right — the congressmen.

“Ha. No,” said Melanie Sloan, host for the evening. “I don’t think they’d come.”

As executive director of Citizens for Responsibility and Ethics in Washington, which celebrated its 10th anniversary last week, Sloan is in the business of suing, investigating and filing complaints against the capital’s most sought-after party guests. Former reps Tom DeLay, John Murtha and Randy “Duke” Cunningham are among the group's more prominent targets. 

Most recently, it’s the murky saga of Sen. Bob Menendez that has kept CREW in the news. The group forwarded the original tip to the FBI about the senator’s improper freebie trips to the Dominican Republic with a campaign contributor — though Sloan later expressed skepticism about the even more scandalous claims that hookers were involved. (One escort now says she was paid to fabricate the story.)

Messy stuff, really. Even elected officials who she says support CREW’s mission tend to keep a distance, Sloan said. “We can never have the party where we can say politicians X, Y and Z will be there, because tomorrow they may be in our sights.”

The cocktail party at Lincoln was highlighted by a video montage of Sloan in cable-news spots, delivering rapid-fire judgments of “most corrupt” members of Congress. (As a former federal prosecutor, the talking-head stuff comes naturally. “When you have to make a presentation to juries, you have to do it in a pithy way,” she told us.)

And though the group is frequently accused of gunning for Republicans (co-founder Norm Eisen, the U.S. ambassador to the Czech Republic, is a former Obama White House lawyer), Sloan told the room it’s a great source of pride that “we get criticism from every side. We get called ‘partisan’ by both sides.”

So how do you measure a good decade? Sloan sounded nostalgic recounting all the ethics charges CREW was the catalyst for, the hundreds of thousands of dollars worth of fines. “For all of this,” she said, “the defense attorneys in the room can thank us later.”

Google publicly disclosed the donation in a required lobbying contribution report filed January 30, 2013, nearly a month after the FTC closed its investigation into Google without bringing a complaint.  The FTC’s decision was widely viewed as a major victory for the company.  The donation appears to have escaped public notice. The October donation was the first time Google honored Chairman Leibowitz with a charitable contribution, according to disclosure records maintained by the Secretary of the Senate that date back to 2008.

When the FTC launched its investigation in June 2011, news reports described it as a potentially serious problem for the search giant.  Google ramped up its influence machine in a clear attempt to avert a court case.  Lobbying disclosure records show the company’s lobbying spending jumped nearly 88 percent between 2010 and 2011, from roughly $5.2 million to $9.7 million, apparently after the company realized it might be the target of an antitrust investigation.  Lobbying spending again increased more than 70 percent between 2011 and 2012, rising to nearly $16.5 million, an amount that made the company one of the biggest spenders on K Street.  Multiple news stories catalogued Google’s hiring of Washington insiders to make its case.  The company drafted both former FTC lawyers and former Rep. Susan Molinari (R-NY), a veteran lobbyist who took over Google’s Washington office in February 2012.

Google also increased its charitable contributions in honor of lawmakers and regulators over the years, a lesser-known way of influencing decisionmakers.  Companies are required to disclose such contributions, but they typically draw little attention.  In 2010, the company reported donating $120,000 in “honorary expenses.”  In 2012, Google doled out nearly $300,000 — an increase of almost 150 percent.  The $25,000 contribution honoring Chairman Leibowitz was the fourth largest honorary donation Google made in 2012, following two $60,000 donations to the Congressional Hispanic Caucus Institute and a $50,000 donation to Public Knowledge in honor of Rep. Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee.

A Common Interest

In addition to the antitrust investigation, Google had other business in front of the FTC at the time of the donation.  The agency was devising new rules regarding kids’ online privacy, an issue on which Google was actively lobbying. When the FTC issued its new rules in December 2012, they were portrayed as a victory for companies such as Apple, Facebook, and Google because they said app purveyors weren’t responsible for policing the apps they distribute.  

Common Sense Media, meanwhile, had spoken in favor of tighter regulations.  “The industry definitely did the best it could to lobby to water down the FTC’s proposed updates,” Common Sense Media founder and CEO James Steyer told the Los Angeles Times.  Nonetheless, Mr. Steyer ultimately supported the rules released by the FTC.  In a press release, he praised Chairman Leibowitz “for standing with parents and making these vital updates to the COPPA [Children’s Online Privacy Protection Act] rules” while arguing that the rule changes “effectively balance growing privacy concerns and the paramount rights of children and families with the tech industry’s need to innovate.”

Searching For Influence

What honor did Google’s $25,000 donation in honor of Chairman Leibowitz buy?  It isn’t clear from disclosure reports.  Companies are required to disclose a range of contributions in honor of government officials, including, for instance, payments for an event to honor or recognize them and payments for meetings, retreats, conferences, and other events held by them or in their names.  Common Sense Media did honor Chairman Leibowitz in April 2012 as a “champion for kids” for “his leadership in protecting kids’ online and mobile privacy.”  Google is not listed in the organization’s press release about the event as one of the “leading sponsors,” but the company is listed on Common Sense Media’s website as a supporter of the group.  In addition, in February 2013, after Chairman Leibowitz announced he was departing the FTC, Politico reported that his chief of staff, Joni Lupovitz, would be joining Common Sense Media as vice president for policy.   

In late October, just weeks after Google’s contribution in his honor, Chairman Leibowitz said on Bloomberg Government’s “Capitol Gains” show that the FTC was open to settling with Google.  He also praised the company.  “We meet with parties always and we try to come to the right resolution, and I believe we will do that and we will do it in a bipartisan manner in a way that protects American consumers and allows businesses — including Google which has done terrific things for consumers — to thrive,” he said.  In January 2013, after the FTC settled with Google, Chairman Leibowitz told Politico that Google’s lobbying offensive was not a deciding factor in the commission’s decision.  “We deal with companies this big all the time; we deal with lobbying this big all the time;... it just doesn’t make a whiff of difference.”

Google certainly isn’t the first company to make strategic charitable contributions aimed at increasing its leverage in Washington.  For instance, while AT&T was seeking federal approval of its $39 billion bid for T-Mobile USA in 2011, CREW’s research found the company had donated $1.24 million to charities favored by key lawmakers between 2008 and 2010.  AT&T also directed contributions to non-profits that then publicly supported the proposed merger, sparking an outcry.  In a 2010 investigation, the New York Times identified dozens of charities with connections to lawmakers from both parties that regularly accepted donations from businesses interested in influencing them.  A spokesperson for Duke Energy acknowledged to the Times that the company participated in lawmakers’ charitable events with an eye towards pushing their agendas, saying it was part of their “overall effort to work with policy makers.”

Corporate donations to non-profits in honor of government leaders are more about currying favor and advancing business interests than about supporting worthy charities.  Google’s well-timed $25,000 donation in honor of Chairman Leibowitz is a drop in the bucket when compared to the hundreds of millions the Internet titan stood to lose had the antitrust inquiry continued.

UPDATE (3/1/13): In a statement posted on the FTC’s official Twitter account, commission spokesman Peter Kaplan said that Chairman Leibowitz “had no idea Google was 1 of many corporate donors until he read” Bloomberg’s article on Google’s donation to Common Sense Media.

Last week, the Supreme Court heard oral argument in a case, McBurney v. Young, challenging Virginia’s citizens-only freedom of information law, enacted in 1968, which bars anyone not a resident of Virginia from accessing state public records. Virginia joins only a few other states with such laws, including Arkansas and Tennessee.

The main legal challenge to the law rests on the Constitution’s Privileges and Immunities Clause, which prohibits states from treating citizens of other states in a discriminatory manner absent a substantial reason that advances a proper state objective. The clause is intended to put citizens of all states on equal footing with regard to the fundamental rights of pursuing an occupation, residing in a state, owning property and engaging in political advocacy.

The constitutional problems with Virginia’s law are not mere abstractions. The prohibition has a real and detrimental impact on groups like our organization, Citizens for Responsibility and Ethics in Washington (CREW), which has filed a brief in the case. State and local records bear directly on a variety of issues of national importance, including oversight of political leaders and candidates, and campaign finance issues. As a non-partisan ethics watchdog group that investigates the potentially unethical behavior of government officials, CREW has a fundamental right to access state records.

When CREW wanted to learn more about Wisconsin Gov. Scott Walker’s use of state troopers to round up state legislators for a vote to overhaul the state’s collective bargaining agreement with unions, it used Wisconsin’s freedom of information law. Similarly, CREW turned to Florida’s state freedom of information law to obtain a copy of the Florida Department of Law Enforcement’s investigative report into the potentially criminal conduct of David Rivera, then a sitting congressman. Without access to these records under the state information laws, CREW would have been hampered in its efforts to discover the truth behind allegations of improper and illegal actions swirling around both Walker and Rivera.

Beyond the right to participate in political advocacy, state records are useful in a host of other non-controversial contexts, ranging from epidemiology to genealogy. Medical researchers, historians and businesses all benefit from access to materials maintained by state agencies. Likewise, those seeking to relocate to Virginia may want to research land-use records, local zoning records or tax assessments. Yet Virginia’s citizens-only law would limit access to these records to current residents of the commonwealth. Journalists fare no better as they too are barred from accessing Virginia’s records unless they can show they are representatives of a newspaper published in the state, or a radio or television station that broadcasts in the state.

Read more on CREW's efforts to increase transparency in government.

In defending the law, Virginia cites the need to confer “special privileges” on its citizens, and characterizes the rights of those seeking state records for political discourse as “highly abstract.” But, as politics plays out more and more frequently on a national stage, there is nothing abstract about the right of the public to participate meaningfully in the political process, regardless of state citizenship. Especially for those of us living in the Washington, D.C. area, the boundaries between Virginia, Maryland and the District of Columbia increasingly are of little relevance. Virginia also ignores the fact that non-citizens, like citizens of Virginia, pay for the right to access public records, thereby obviating any burden their requests impose on Virginia officials.

At bottom, Virginia’s defense of its citizens-only information law reflects a refusal to recognize we live in a global world where, thanks to the Internet, information flows freely across state and country lines. As we move to toward greater and greater government transparency, with more information than ever before available to anyone with a computer, there can be no legitimate interest in depriving those who live outside a state access to information routinely granted to those who reside within its borders.

Op-ed Originally Appeared in the Richmond Times-Dispatch, February 25, 2013

Once a promising congressman with 18 years of public service, and a son of the former civil rights activist and presidential candidate, Mr. Jackson unraveled in a web of scandal over the course of the last year.  On Wednesday, he pleaded guilty to using approximately $750,000 dollars in campaign money to enrich himself and his wife.  Fur coats, movie tickets, a health spa membership, a gold-plated Rolex watch, and trips to Costco are just some of the items they indulged in over the years.  His campaign funds were essentially a personal piggy bank.  You can read CREW’s statement on the sad saga here.

In other news, former Sen. Pete Domenici (R-NM) disclosed he had a son out of wedlock 30 years ago. While not illegal, Sen. Domenici joins a long list of congressional members with similar fates, yet his is all the more ironic given he voted in favor of convicting and removing President Clinton from office over the Monica Lewinsky affair.

And of course, let’s not forget Sen. Menendez.

On the campaign finance front, dark clouds lie ahead.  The Supreme Court, not satisfied with the carnage it inflicted with Citizens United, agreed to hear a case that could lead to the continued dismantling of restrictions on money in politics.  The case, McCutcheon v. FEC, involves a challenge by the Republican National Committee to the constitutionality of aggregate contribution limits imposed on federal candidates and party committees.  If the Court strikes down the existing limits — as many fear — it will be akin to sanctioning legalized bribery.  It was established long ago that a system allowing massive campaign contributions was inherently corrupt.  To reverse this conclusion would be yet another radical decision by the Supreme Court.

Last but not least, CREW and former congressional candidate Dr. David Gill and his campaign committee filed a lawsuit against the Internal Revenue Service (IRS) for flouting a federal law barring so-called “social welfare” organizations from engaging in political activity.  Such organizations, like the American Action Network (AAN), have relied on an IRS-created tax loophole to spend millions of dollars on electioneering activity without disclosing their donors.  Dr. Gill was the victim of false and misleading negative ads and robocalls by AAN, which spent nearly $1.5 million opposing his candidacy, more than $1 million of which was spent in the final weeks of the campaign.  You can read a fact sheet on the case here.

Let’s hope for better news next week. 

This post was updated 3/5/2013.

In December, former Rep. Heath Shuler (D-NC) donated $5,000 to the C Street Center, a Christian boarding house on Capitol Hill where Rep. Shuler lived when he was in Congress.  The house, affiliated with a religious organization known as the Fellowship that sponsors the National Prayer Breakfast, is infamous for serving as a rooming house and home base for scandal-ridden politicians such as former Gov. Mark Sanford (R-SC) and former Sen. John Ensign (R-NV).  Rep. Shuler also donated $20,000 to a church in North Carolina and $10,000 to “community schools,” though it isn’t clear where the schools are.

Former Rep. Todd Platts’ (R-PA) campaign, meanwhile, spent $40 on baseball tickets.   Former Rep. Barney Frank (D-MA) used his campaign funds to pay for more than $7,000 in food, lodging, and travel expenses in November and December 2012, including $489 for food and lodging in Maine, the state where Rep. Frank’s husband lives.  Former Rep. Gary Ackerman (D-NY) spent $622 on Christmas Eve to pay for a hotel in Atlanta for the congressman.

A recent USA Today story found other examples.  Former Rep. Edolphus Towns (D-NY) spent $2,300 at the Apple store in Manhattan.  Former Rep. Norm Dicks (D-WA) gave $25,000 to the athletic department of the University of Washington, the school he attended and where one of his sons works.  The pattern echoes the examples of questionable spending CREW unearthed for No Strings Attached, a report published last year examining how members of Congress use leftover campaign funds.

Several members used their campaign funds to throw parties for their staff.  Former Rep. David Dreier (R-CA), for instance, spent more than $1,000 at a D.C. restaurant, Bistro Italiano, on December 27, 2012.  Former Rep. Charlie Gonzalez (D-TX) spent more than $6,000 at Ruth’s Chris Steakhouses in D.C. and Texas for “staff appreciation.”

Former Reps. Ron Paul (R-TX) and Elton Gallegly (R-CA) paid out salaries to family members despite having no campaigns to run.  Rep. Paul paid a combined $9,200 to his daughter, the campaign treasurer, and another daughter’s mother-in-law in November and December 2012.  Rep. Gallegly’s campaign paid his wife and campaign treasurer, Janice, $4,580 in November and December. 

Former Rep. Jerry Costello (D-IL) also used his campaign funds to benefit a family member, donating $43,000 to his son, state Rep. Jerry Costello II.  Rep. Costello’s campaign also paid for a $677 hotel stay in New Orleans on December 10, 2012.  Despite that, Rep. Costello has more than $1.6 million left in the bank, the most money of any of the 35 members who retired at the end of the last Congress.  Rep. Costello recently told the St. Louis Post-Dispatch that he plans to become a consultant.  His leftover campaign cash will likely come in handy.  CREW’s previous research has found members who become lobbyists are more likely to build influence and access by using their leftover campaign funds to make campaign donations to former colleagues.

It’s worth noting that four retirees — former Reps. Maurice Hinchey (D-NY), Dale Kildee (D-MI), John Olver (D-MA), and Mike Ross (D-AR) — have already terminated their campaign accounts.  Rep. Kildee donated the balance of his campaign account, $10,740.77, to the YWCA of Greater Flint before terminating his campaign committee.  The others paid off bills and made a series of small expenditures and small donations.  Meanwhile, former Rep. Brad Miller (D-NC) may have some interesting expenditures, too, but we can’t tell you what they are — he hasn’t yet bothered to file the campaign finance reports that were due on January 31, 2013.

Although the 35 retirees are no longer running for office, their campaign accounts have a combined $8.5 million left to dispose of.  Depending on what they use the money for, these accounts could start to look an awful lot like slush funds.

It’s time for official Washington to stop pretending the National Prayer Breakfast is a rare demonstration of bipartisan religious unity and recognize it for what it is: a marketing event for a shadowy, fundamentalist religious organization that incites discrimination against gays. In past years, my organization, Citizens for Responsibility and Ethics in Washington, has unsuccessfully called on government leaders to boycott this event.

Every year since 1953, presidents have attended the National Prayer Breakfast, sponsored by the Family, or the Fellowship, which is headed by Doug Coe. Coe has been a spiritual adviser to presidents, political leaders, businessmen, and military leaders — both in the United States and abroad — preaching an unconventional brand of Christianity focused on meeting Jesus “man-to-man.” As has been well-documented by journalist Jeff Sharlet, the Fellowship operates under a veil of secrecy, concealing the sources of its funding, its financial holdings, and its political goals.

The National Prayer Breakfast is the Fellowship’s marquee event. This large-scale function serves as a recruiting tool for the group but is often misconstrued by attendees as an official government event — a perception reinforced by frequent presidential addresses at the breakfast, presidential seals strategically located around the room, and an organizing committee made up of members of Congress. Coe, however, is the breakfast’s true organizer, even though he remains in the background, perhaps afraid that acknowledgment of the Fellowship’s involvement would diminish attendance.

The Fellowship has also been tied to a variety of secret, back-door diplomatic actions. At past breakfasts, organizers facilitated meetings between foreign dignitaries and the president as well as members of Congress, outside the reach of the Department of State and traditional U.S. diplomatic protocol. Away from the breakfast, Coe and Fellowship members have met with and occasionally played host to foreign dignitaries from around the world, including dictators and despots such François “Papa Doc” Duvalier of Haiti.

The Fellowship has financed foreign trips for affiliated members of Congress, who have then mixed religion and official duties while meeting with foreign dignitaries. At least two senators, Oklahoma Republicans Tom Coburn and Jim Inhofe, have worked on behalf of the Fellowship while on official, congressionally sponsored trips abroad.

In addition, Ugandan lawmaker David Bahati, an outspoken participant in the Fellowship, drafted draconian antigay legislation that included the death penalty for any HIV-infected individual convicted of having gay sex. As a result of international criticism, the death penalty may be replaced with life imprisonment. While President Obama decried the legislation at the 2010 breakfast, the continued presence of the president and congressional leaders at an event produced by those who support such odious measures undermines American condemnation of discrimination against gay people everywhere.

Moreover, for years the Fellowship operated a tax-exempt discount boardinghouse — known as the C Street House — for members of Congress under the guise of a church. Even though the group was forced to correct the building’s tax status after a rash of bad publicity involving some of its previous residents, including disgraced former Republican senator John Ensign of Nevada, the Capitol Hill row house continues to serve both as lodging and as a meeting place for members, some of whom have had a pact not to discuss their living situation.

In response to reporters’ questions about the president’s attendance at this year’s event, White House press secretary Jay Carney weakly responded by saying he hadn’t “focused” on the breakfast’s organizers, and explaining that the president is “not responsible for the views of every organization or person who participates.  His views on these issues, as you just noted in your question, are quite clear.”

Of course, President Obama wasn’t the only prominent attendee: Senators Jeff Sessions, an Alabama Republican and Mark Pryor, a Democrat from Arkansas, served as cochairs. Sen. Chuck Schumer of New York and House minority leader Nancy Pelosi, both Democrats, were also present, as were newly installed Secretary of State John Kerry and outgoing Secretary of the Interior Ken Salazar.

By attending the National Prayer Breakfast, government officials lend legitimacy to an organization whose ideas and practices are antithetical to the American ideals of equality, transparency, and high ethical standards. Maybe next year our political leaders will think harder about the message their attendance sends and worship elsewhere.

Op-ed originally appeared in The Advocate on Februrary 11, 2013

Op-ed originally appeared in the Journal Star, February 10, 2013

Dark money groups fresh off an unprecedented binge of election spending are now aggressively working to defeat President Barack Obama’s nomination of former Sen. Chuck Hagel (R-Neb.) to be secretary of defense.

Some of those trying to bulldoze Sen. Hagel’s nomination are working overtime to conceal their motives. For instance, in efforts to stoke liberal opposition, Republicans who supported presidential candidate Mitt Romney -- despite his hardline positions against gay rights -- may well be funding the Log Cabin Republicans to run ads criticizing Sen. Hagel for anti-gay statements and positions he expressed more than a decade earlier. As it turns out, these groups are doing much more than just trying to derail Sen. Hagel’s nomination.

One of the groups taking the lead in the fight against Sen. Hagel is the American Future Fund (AFF), an Iowa-based group that spent nearly $26 million benefitting Republican candidates during the 2012 election cycle.

“Postelection we have new battle lines being drawn with the president; he kicks it off with these nominations and it made sense for us,” Nick Ryan, the founder of AFF, told The New York Times regarding the group’s decision to fight the Hagel nomination. In an effort to discredit him, AFF inaccurately has suggested Sen. Hagel violated Senate ethics rules and that he is on the board of a firm with investments in Iran.

Why does AFF, with the stated mission of promoting conservative and free market principles, have a dog in this fight? Significantly, as a 501(c)(4) social welfare organization that does not disclose its donors, AFF’s primary purpose can’t be influencing elections. But AFF, formed in the wake of the Supreme Court’s disastrous Citizens United decision, has done little more than spend millions running negative ads against Democrats.

To maintain its favorable tax status, AFF now needs to burn money on programs to offset money spent electioneering. Ads opposing Sen. Hagel’s confirmation help because they don’t count as electoral activity. This is a win-win for AFF: The campaign against Sen. Hagel shows it is doing more than just election advocacy while still advancing a political agenda.

To that end, AFF told Politico it plans to launch anti-Hagel ads online, in the Washington, D.C. market, and in key senators’ states -- an expensive proposition. “It’s a very well-funded effort,” an AFF spokesman promised. Indeed, the Sunlight Foundation, which tracks political ads, found outside groups already have spent at least $183,000 on anti-Hagel ads.

So exactly who is funding this effort, and why? The public has no idea.

Groups like AFF are funded and dominated by a small number of secret large donors. For instance, in 2010, AFF reported raising a little more than $23 million in 33 contributions. Of that, a single contribution of nearly $11 million -- almost half of all money raised -- was made by another shady non-profit, the Center to Protect Patient Rights. Notably, in the off-year of 2011, AFF reported raising far less money, nearly $2.6 million in 11 contributions, including one check for more than $1 million. It seems donors view largesse to groups like AFF as a way to influence policy from the shadows.

The Times reported Sheldon Adelson, one of the biggest donors to super PACs and 501(c)(4) groups supporting Republicans during the 2012 election cycle, is contacting Republican senators directly and urging them to oppose Sen. Hagel’s confirmation. Given that Adelson spent more than $100 million, it is a safe bet that senators will take his call.

As election law expert Richard L. Hasen pointed out last year, the real danger of unlimited money in politics is that it may “skew the legislative process” in favor of large contributors like Adelson. Members of Congress know that if they say no to megadonors, they may face an onslaught of negative campaign ads the next time they’re on the ballot. Correspondingly, assisting Adelson and those of his ilk might well persuade such contributors to support their reelection efforts by generously underwriting ads against their opponents.

The well-financed campaign against Sen. Hagel’s nomination is just one more illustration of the devastating impact of Citizens United. Until dark money groups are forced to disclose their donors, the public has no way to know who is influencing members’ votes -- or why.

Op-ed originally appeared in the Journal Star, February 10, 2013

While attendees and the public await the president’s remarks, few seem to question who is behind the event.  The answer is not nearly as wholesome as the nation's leaders sharing a breakfast devoted to prayer.

The annual breakfast serves as a meeting and recruitment event for the Fellowship Foundation, also known as “The Foundation,” “The Fellowship,” or “The Family.”  The shadowy group’s leader, Doug Coe, has served as a spiritual adviser to government officials and uses the organization to push his unorthodox brand of Christianity within government circles.  The organization operates under a veil of secrecy, concealing the sources of its funding, its financial holdings, and its political goals.

The group operates the infamous C Street House, a tax-exempt boarding house and former home to scandal-ridden former Sen. John Ensign (R-NV).  Mr. Coe’s group also supported Laurent Gbagbo, the former president and dictator of the Ivory Coast, and pushed for anti-gay legislation in Uganda that made homosexuality a capital offense.  At past breakfasts, organizers have even facilitated meetings between foreign dignitaries and U.S. politicians — well outside the reach of the State Department.

Despite frequent presidential addresses, the placement of presidential seals at the event, and an organizing committee made up of members of Congress, the breakfast is in no way a government-sanctioned event.  By attending the breakfast, both the president and Congress lend legitimacy to the Fellowship Foundation, and assist it with networking and fundraising.  As in past years, CREW urges lawmakers to boycott the event.

Instead of spending several hundred dollars to attend, lawmakers would be wise to steer clear of the Washington Hilton on Thursday.  Prospective attendees shouldn’t have a hard time finding an alternative place to grab the most important meal of the day and avoid bolstering the credibility of a shady religious association.

CREW made two presentations.  First, we  called on Congress to address the problem of secrecy of Department of Justice Office of Legal Counsel (OLC) memos.  The OLC provides written and oral legal opinions to the executive branch, including the president, attorney general, and heads of departments.  Some of OLC’s opinions pertain to highly controversial actions, such as the legal justification for the torture of detainees, and, more recently, the legal authority for assassinating an American citizen in Yemen.  Creating such a body of secret law breeds public distrust and confusion over the reasons and rationale for the government’s actions.  Making more of these opinions publicly available will allow both Congress and the public to understand what laws and justifications govern executive branch actions.

Second, we called for the timely release of Congressional Research Service (CRS) reports to the public.  The CRS issues non-partisan, independent reports covering issues that shape legislation and policy, and are written exclusively for consumption by members of Congress and their staff.  For Congress, all it takes is a quick search of the CRS website to comb through a treasure trove of policy reports, providing staff with the research and guidance they need to get the job done.  For the general public, however, accessing these reports — paid for by the taxpayers — is tedious, and sometimes impossible.  To be clear, we are not advocating for the release of confidential memoranda between CRS and individual members of Congress, but only those reports CRS makes generally available to all members and congressional staff.  Each year, taxpayers spend more than $100 million on the CRS, and we believe the public has the same right as Congress to access these reports. 

There were fourteen other presentations by a diverse cadre of organizations, including Judicial Watch, the Center for Responsive Politics, and Center for Effective Government.  Click here to watch and listen to some of the most innovative proposals to shine a greater light on your government.

Motion to Proceed.  The Senate amended its rules to eliminate the 30 hours of post-cloture debate when both the majority leader and minority leader, plus seven senators from each the majority and minority, sign a cloture petition on the motion to proceed to debate legislation. Under the prior rule, the 30-hour rule rarely was used to debate the proposed legislation and instead served as a means to unnecessarily delay and obstruct action on legislation and nominations, even when a supermajority was ready to proceed.  This reform potentially will speed up legislative action on additional matters.

Going to Conference with the House.  Under the prior rules, it could take up to three motions for the Senate to go to conference with the House when both chambers passed similar legislation that needed to be reconciled.  All three motions were subject to a filibuster.  The amended rule requires only one motion to go to conference, although this is still subject to filibuster.

Judicial Nominees.  Post-cloture consideration time for certain presidential nominees, such as lower cabinet positions and district court judges, has been reduced from 30 hours to, at most, eight hours.

The Filibustering Senator.  While not part of the rules package, a so-called gentleman’s agreement was struck requiring those senators who wish to filibuster to physically come to the Senate floor and identify themselves.  This agreement prompted Sen. Ron Wyden (D-OR) to express hope this will greatly, and perhaps completely, diminish the practice of secret holds.  Obviously, a senator cannot place an anonymous hold if the senator is required to come to the floor for the hold to be honored.

Will these reforms lead to a more productive chamber, foster more debate on legislation and issues, and yield more votes on substantive matters?  Only time will tell.  The Senate doesn’t exactly have a sterling record when it comes to enforcing its own rules.  As CREW recently noted, senators routinely ignored the rules change passed in the 112^th Congress, championed by Sens. Wyden and Chuck Grassley (R-IA), that required senators to submit holds to their party leader and in writing to both the Congressional Record and the Senate legislative clerk within two days.

In the end, it’s safe to say these modest yet necessary reforms would not have been achieved without the tenacious activism of organizations like CREW and others.  While we were unable to achieve the most significant reform — the talking filibuster — last week’s reforms certainly put in place the potential for a more efficient Senate.  Hopefully this will be the starting point for more substantive reforms that make all members more accountable.

So, if campaigns and voters don’t benefit from the never-ending stream of ads, who does?  A small group of political insiders, of course.  A recent analysis by the Sunlight Foundation found that 80 percent of the mind-boggling $620 million spent by super PACs during the 2012 cycle flowed through only 20 consulting firms, many of them responsible for media buying.  A lot of the money ultimately pays for air time, but the media firms keep a cut.  In many cases, the Sunlight analysis found, the consultants and firms profiting the most had close ties to the campaigns and independent groups spending money on the ads.

It’s possible the 2012 election results will prompt campaigns and independent groups such as super PACs to move away from barraging voters with campaign ads in search of more effective ways to influence elections.  Either way, it’s a sure bet that insiders will keep finding ways to profit at the expense of voters.