Due to the FEC’s failures, transparency in political advocacy remains elusive

As the Federal Election Commission (FEC) explores options to revamp its rules concerning political ad disclosure, now is a good time to examine the legislation behind those rules.

The two main pieces of campaign finance regulatory legislation are the Federal Election Campaign Act (FECA) and the Bipartisan Campaign Reform Act (BCRA). Originally, they were intended to govern not only disclosure but political spending. However, once  Buckley v. Valeo (1976) invalidated the overall spending limits established by FECA as violations of the First Amendment’s right to free speech, it set the precedent for a series of legal decisions, culminating in Citizens United (2010), that removed any limits on spending on political advocacy.

Although both decisions arguably served to unleash “[t]he tide of money swelling around the American political system,” they also, rhetorically at least, acknowledged the need for transparency. The Buckley court saw disclosure as an “appropriate legislative [weapon] against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions.” 34 years later, the Supreme Court wrote in Citizens United that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way….[enabling] the electorate to make informed decisions and give proper weight to different speakers and messages…”

But the proof is in the pudding, and the campaign finance pudding is heavy with undisclosed political expenditures and contributions. The reason for this has less to do with legal precedent than with ineffective administration. With the deregulation of expenditures, one of the FEC’s main jobs became ensuring public disclosure of political spending and fundraising as mandated by FECA and BCRA, in addition to enforcing contribution limits. However, there are structural limits on the FEC’s ability to either investigate or adjudicate possible legal violations. The FEC has six commissioners, no more than three of which may be from the same party, but four votes are needed to take any action. So if three commissioners decide to “vote[] in lockstep” to prevent the FEC from taking any action, it remains paralyzed. When the FEC cannot come to a decision because of deadlock, nothing happens.

When the FEC fails to take action to uphold disclosure requirements, as it frequently does, the only way to get a court to weigh in is to sue the FEC, which is not a cheap or an easy task. And while FECA does allow for judicial review of FEC decisions, that review is limited. Deferential review under the Administrative Procedure Act and the Chevron Doctrine limits a court’s ability to second guess the FEC. Thus, even if the FEC wrongly dismisses an alleged violation of FECA’s disclosure requirements, a court may still need to defer to the FEC’s determination.

The value of disclosure is widely accepted.  The late Justice Antonin Scalia, an opponent of of campaign finance regulation, wrote in his dissent in McConnell v. FEC that “corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed as ‘in the pocket’ of so-called moneyed interests” [emphasis added]. After Buckley and following cases eviscerated campaign finance regulation, disclosure requirements under BCRA and FECA are among the few checks on “improper influence” available, and it remains to be seen whether they can be properly administered.

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