A Cry for Help From the FEC
WASHINGTON -- It has come to this: The chairman of the Federal Election Commission and a fellow Democratic commissioner have filed a petition asking their own agency to do its job.
Don't hold your breath.
It's not news that the campaign finance system is out of control. It's not news that the FEC has watched, haplessly, as candidates and their super PACs have made a mockery of individual contribution limits and as a torrent of unreported "dark money" sweeps through a system premised on disclosure.
The conventional narrative places the blame on the Supreme Court and its 2010 Citizens United ruling, which, along with subsequent decisions, paved the way to unlimited independent expenditures by corporations and bands of wealthy individuals (via super PACs).
But this account both overstates the ruling's significance and fails to hold the FEC to task for failing, even in the difficult post-Citizens United legal landscape, to perform its enforcement and regulatory functions.
Recall, even before Citizens United -- indeed, since the high court's landmark 1976 ruling in Buckley v. Valeo -- the justices made clear that the First Amendment protects the ability of wealthy individuals to spend unlimited sums of their own money to promote (or oppose) individual candidates. The catch has been that these expenditures are supposed to be (a) disclosed and (b) made independently of candidates.
Ha and ha.
Disclosure has become more or less optional. If you want to influence an election and don't want your fingerprints on the spending, just employ the mechanism of a nonprofit organization operating under the fiction that it is a "social welfare organization" for which politics is not the primary activity. Such "dark money" accounted for nearly one-third of outside spending in 2012.
Independence is similarly fictional, particularly with the emergence of the candidate-specific super PAC. These entities exist for a single purpose -- to promote a candidate rather than any party or ideology. They are run by the candidate's allies and advisers, and the candidate can headline its fundraisers as long as he or she doesn't directly solicit the big check.
Was this what the justices contemplated in Citizens United? "By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate," observed Justice Anthony Kennedy, dismissing concerns about corruption.
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