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How the FEC can stop the tidal wave of secret political cash

By Trevor Potter,November 16, 2012

(Lincoln Agnew for The Washington…)

Don’t blame Citizens United for the worst excesses of this year’s election.

Instead, look to the failures of the Federal Election Commission.

The Supreme Court’s Citizens United decision — which created a constitutional right for corporations to spend unlimited amounts independently of federal candidates or party committees — has been rightly criticized for its legal incoherence, judicial activism and equation of corporations with individuals. However, it’s not responsible for two of the most outrageous aspects of the 2012 campaign: the super PACs that claimed to be independent despite their close association with candidates, and the hundreds of millions of dollars from secret donors that paid for an avalanche of negative campaign ads.

Concerning the super PACs, the court — in several rulings, including Citizens United — said the only unlimited campaign expenditures it was enabling had to be “wholly,” “totally” and “truly” independent of candidates and political parties. As for secret donors, the Citizens United opinion stated that, under existing law, the sources of funding for election ads would be fully and speedily disclosed on the Internet — promising that shareholders could hold corporations “accountable” for their political donations, and voters could “see whether elected officials are ‘in the pocket of so-called moneyed interests.’ ”

Both of those promises went unfulfilled this year — not because of the court’s ruling, but because of the FEC, the government agency whose job it is to enforce U.S. laws on money in politics.

It is the FEC and the permissive regulations it has created over the past decade that have allowed close connections between candidates, parties and political action committees. And it is the agency’s dysfunctional state — engineered by a Republican congressional leadership adamantly opposed to campaign finance reform — that has turned the Supreme Court’s promise of transparency into a joke.

When I was appointed to the FEC by President George H.W. Bush in 1991, I joined a panel of two fellow Republicans and three Democrats, commissioners who basically saw their jobs as ensuring that their party was treated fairly in the rough-and-tumble of elections.

In practice, this worked pretty well. When Congress created the FEC after the Watergate scandal of the early 1970s, it decreed that there be six commissioners, with no more than three from one party. At least four votes are required to take any action, such as opening an investigation or appealing a court decision.

This had an obvious potential for deadlock, but in my years on the commission, 3-to-3 ties were quite rare. The most partisan disputes involved a commissioner saying something like, “Well, if you’re going to vote that my party broke the law in this case, then you’d better vote the same way in this other case, where one of your guys does the same thing.”

My fellow commissioners largely believed in the FEC’s mission and worked hard to enforce campaign finance laws.

Things began to go badly wrong with campaign finance law during the 1996 presidential campaign, when Democrats’ cultivation of big “soft money” contributors — donors, some of them foreign, who gave money to “party-building” organizations — resulted in a lengthy Justice Department investigation. It was also becoming clear to many in Congress that soft-money donations to the Republican and Democratic national committees were corrupting the legislative process.

Two senators, Republican John McCain and Democrat Russ Feingold, reached across party lines to write a campaign finance reform law that prohibited parties from seeking or taking huge contributions, and reinforced the ban on corporate and labor money paying for campaign ads in federal elections. It was called a bipartisan effort, but in reality the Republican leadership fought it bitterly for years. After the McCain-Feingold bill finally passed in 2002, Republican opponents led a lawsuit to have the measure declared unconstitutional, and after losing that suit it tried to limit enforcement of the law.

Meanwhile, the FEC, which included commissioners of both parties who were skeptical of reform, wrote regulations that deliberately weakened and distorted the law.

When President George W. Bush nominated a new slate of FEC commissioners in 2008, its three Republicans reflected even more strongly the party’s opposition to the law. The Democrats, mirroring their own party’s leadership, supported it, but without Republican cooperation they were unable to strengthen regulations. Since then, most important votes at the FEC have resulted in partisan 3-to-3 ties, leaving the commission essentially unable to act.