A Call to Abolish the FEC

The federal commission has failed at the task of enforcing campaign finance rules and should be replaced

Colbert FEC - Yuri Gupas Reuters - banner.jpg

Comedy Central host Stephen Colbert, at a June FEC hearing where he received permission to form a new SuperPAC

The Tea Party and Occupy Wall Street are as far apart on the political spectrum as possible, but both cry foul at the capture of government by special interests. Left and right alike agree that elected officials shouldn't finance their campaigns with contributions from the industries they regulate.

But even stanching the flow of favor-seeking dollars to our representatives won't address the potential corruption that flows from soft money spent by supposedly "independent" groups. To safeguard our democracy, we need strong rules that will bring transparency and accountability to this outside spending -- and an oversight agency that can, and will, enforce them.

The Federal Election Commission isn't up to the task. It has refused time and again to enforce the campaign finance laws its commissioners are sworn to uphold. It should be replaced.

The dangers of outside money are growing. Non-candidate political spending rose significantly in the last election cycle, and it's poised to shatter historic records this time around. In 2010, during the first election after the Supreme Court's Citizens United case paved the way for unlimited spending by corporations and unions, outside spending increased more than 400 percent compared to the prior midterm election. Almost half came from groups that didn't disclose their donors. If spending increases at the same rate in 2012, we'll see more than a billion dollars worth of political spending by groups that aren't accountable to the public.

Voters can't make informed choices in the political marketplace if they don't know which people, companies, or interest groups are trying to influence their votes. Accordingly, federal law requires these spenders to report donors who contributed more than $200 for the purpose of furthering the group's electioneering.

But the FEC has opened up a loophole in the disclosure law big enough to drive a truck through.

Under the FEC's rules, groups don't have to disclose their donors unless the donor specifically earmarks the donation for a particular advertisement. It doesn't take a particularly sophisticated contributor to game the system -- just write your check and hand it over with a wink and a nod instead of an express agreement, and your name stays secret. Under the FEC's rules, money talks -- it just doesn't leave its name.

Inadequate disclosure is only one problem with the agency. The latest FEC episode looks like pure farce, but it could have tragic consequences for our democracy.

Among other results of Citizens United, and another federal court case concerning the group SpeechNow.org, was the birth of a new entity that can take unlimited contributions: the SuperPAC. Contribution limits exist -- and have been repeatedly upheld -- because they curb corruption. Citizens United declared that independent political spending -- undertaken without coordinating or consulting with candidates -- cannot corrupt candidates.

Therefore, the FEC concluded in a 2010 advisory opinion, if a PAC declares that it is fully independent and does not contribute to candidates, it need not abide by contribution limits.

Thus was born the SuperPAC. Under the FEC's opinion, wholly independent SuperPACs can legally receive unlimited contributions -- from corporations, unions, and trade associations, among others.

But, on the way to the 2012 election, a funny thing happened with that "wholly independent" requirement.

Presented by

Adam Skaggs is senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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