Last week, the press was full of retrospectives on the one-year anniversary of the Supreme Court's decision in Citizens United v. FEC, which freed corporate cash for use in federal elections. The Federal Election Commission, the six-member bipartisan body charged by Congress with administering and enforcing federal campaign finance laws, marked the anniversary with a 3-3 partisan deadlock over proposed rules to revamp those laws in light of the Citizens United opinion. Unfortunately, this was business as usual at the FEC: For the past several years the three Republican FEC commissioners have blocked enforcement of much of what remains of federal campaign finance law. As we enter the 2012 election season, the FEC is as good as dead, and the already troubling campaign finance world of secret unlimited donations is bound to get worse.
Campaign finance reformers have long complained about the toothlessness of the FEC, whose rules require the appointment of no more than three commissioners from any one party at one time and the votes of four commissioners to get anything done. And yet in past years, the evidence did not bear this out. Democratic and Republican commissioners often worked together, crafting rules and voting to penalize candidate, parties, and political committees for violating federal law.
All of this changed a few years ago, when Republicans put forward the name of Hans von Spakovsky to serve as an FEC commissioner. Von Spakovsky had a controversial tenure when he worked at the Bush Department of Justice, where he was involved in overruling career attorneys (who are not political appointees) on whether the department should approve Georgia's controversial voter-identification law and the Tom DeLay-led Texas redistricting plan. When President Bush nominated von Spakovsky in late 2005, civil rights and campaign finance reform groups protested, and a new senator by the name of Barack Obama put a hold on the nomination.
For a while, von Spakovsky held a recess appointment, but the fight over him resulted in a standoff in the Senate that whittled the FEC's six members down to two. Without a quorum of four, the commission was unable to do even basic things such as approving public funding for presidential candidates. Senate Minority Leader Mitch McConnell, an ardent foe of campaign finance regulation, would not give up on von Spakvosky's nomination, but in 2008 von Spakovsky got tired of waiting for confirmation and withdrew.
President Bush quickly nominated in his stead a Republican staffer on the Senate rules committee, Matthew Petersen. That broke the logjam. The Senate quickly approved Peterson and three more FEC nominations: Cynthia Bauerly, a Democratic Senate staffer, Caroline Hunter, a reliable Republican vote during her service on the U.S. Election Assistance Commission, and Donald McGahn, a Republican election lawyer.
McGahn is everything McConnell could have hoped von Spakvosky would be—a strong opponent of campaign finance regulation in an agency charged with writing and enforcing those regulations. And he is so much more. Instead of inviting controversy, McGahn is a smart, under-the-radar ringleader of the Republican commissioners. (His name gets only three hits from Google News in all of 2010.) With Petersen and Hunter, who garner even less attention than he does, McGahn is dismantling the country's campaign finance laws.
The Republican commissioners have eviscerated campaign finance law simply by resisting the enforcement of such laws. Consider the all-important topic of campaign finance disclosure. As part of the 2002 McCain-Feingold reforms, Congress required that virtually all contributions that pay for television or radio ads close to an election and feature a federal candidate must be disclosed in reports filed with the FEC. The disclosure requirement became even more important after Citizens United, because the Supreme Court's ruling for the first time allowed corporations to spend money directly in federal elections. If the corporations can spend money while shielding their activities from public view, they can avoid alienating customers.
Over the summer, the three Republican FEC commissioners blocked an investigation into whether the conservative group Freedom's Watch violated the disclosure provisions by failing to identify its donors. As Paul Ryan of the reform-oriented Campaign Legal Center describes, in a Statement of Reasons explaining the vote, the Republican commissioners made clear that they will not require the disclosure of the identity of a contributor to a group like Freedom's Watch unless that contributor earmarks the money for a specific ad. In other words, unless someone donates with instructions like "Use this money to run an ad on Channel 7 against Barbara Boxer on Sept. 3 at 4 p.m.," the contribution need not be disclosed.
Commissioner statements like this one signal to campaign finance lawyers what their groups can and cannot do. You can imagine the predicate effect of this one: no more disclosure of most contributions funding election ads.
There's more. Earlier this month, the three Republican commissioners blocked an investigation into whether a Louisiana company, U.S. Dry Cleaning Corp., gave more than $38,000 in illegal campaign contributions to Sen. David Vitter, R-La., by laundering the money through several company executives and their spouses. They also deadlocked "on whether to investigate Robert Kirkland for allegedly spending more than $1 million for advertising to aid the campaign of his brother, of Ron Kirkland, an unsuccessful Tennessee Republican candidate for the House. Robert Kirkland's spending would be illegal if he coordinated it with the campaign—which both he and a consultant for his "independent" effort both initially worked for.
The list of deadlocks goes on, leading up to the culminating failure last week to review FEC rules in light of Citizens United. The Democratic commissioners want to restore the disclosure rules undermined by the summer FEC vote. They also want to make clear that foreign corporations are still barred from participating financially in federal elections. The Republican Commissioners will have nothing to do with any of this. The likely result is no new rules for the 2012 election cycle.
Let's be clear. The Republican FEC Commissioners are not simply following the Supreme Court's lead in Citizens United. In that case, Justice Anthony Kennedy praised the benefits of full disclosure of corporate money in elections, for both shareholders and voters. Despite this language in the ruling, the Republican FEC commissioners have already undermined existing disclosure laws, and the remaining provisions of campaign law seem up for grabs, too. I cannot help wondering if we'd have been better off if the Senate had approved von Spakovsky's nomination. At least then, more people might be paying attention to the demise of the FEC. And even doing something about it.
Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, writes the Election Law Blog and is writing a book on the election administration wars. He is also a visiting professor at UC-Irvine School of Law.