FEC Issues Seriously Flawed Regulations Today to Implement Citizens United, Nearly Five Years After Decision

Statement of Democracy 21 President Fred Wertheimer

The FEC issued seriously flawed regulations today to implement the Citizens United decision.  The regulations come nearly five years after the Supreme Court decided the case and provide yet another example of the dysfunction that characterizes the agency.

Incredibly, the FEC left out of its action today the most necessary new regulation in the wake of   Citizens United – a regulation to properly interpret the campaign finance laws to require “dark money” spending groups to disclose the donors whose funds are being used to pay for their election communications.

The refusal of the three Republican Commissioners to even consider issuing a new disclosure regulation is directly responsible for the agency’s flawed regulations issued today.

Led by Commissioner Weintraub, the Democratic Commissioners have correctly insisted for years that any action by the FEC to adopt new regulations to implement Citizens United must close the gaping disclosure loopholes that exist as a result of the FEC’s existing disclosure regulations.

Democratic Commissioners Weintraub and Walther voted today against the new regulations because they failed to deal with the disclosure issue. Democratic Commissioner Ravel, however, voted with the three Republican Commissioners to issue the regulations.

Commissioner Ravel also voted today with the three Republican Commissioners in a 4 to 2 vote to gut the party contribution limits by permitting national parties to receive contributions that are prohibited by the Federal Election Campaign Act. (See Wertheimer statement here on this unjustifiable action.)

The idea that today’s votes have broken the gridlock at the FEC is an illusion.

Commissioner Ravel’s decision to join with the three Republican Commissioners in ignoring essential new disclosure regulations and authorizing illegal party contributions provides no evidence that the three Republican commissioners have changed their hard line position on consistently undermining the nation’s campaign finance laws. They have done this by repeatedly blocking FEC enforcement and misinterpreting the campaign finance laws.

Gridlock has been “broken” today only in the sense that Commissioner Ravel twice decided to join with the Republican Commissioners in their misguided views of the campaign finance laws, which are based on their strong opposition to the laws.

The Supreme Court’s decision to strike down the ban on corporate expenditures in federal elections was based in part on the Court’s assumption that full disclosure was required of the funds that would be used by corporations, including tax-exempt nonprofit corporations, to make independent expenditures.  This disclosure was upheld by the Supreme Court in an 8 to 1 vote.

However, the Court obviously did not understand that the existing FEC regulations had gutted the requirements in campaign finance laws to disclose the sources of the funds being used for the expenditures. Instead of responding to the Supreme Court’s assumption that full disclosure would take place, the FEC again failed today to properly implement the contribution disclosure provisions of the law.

The lion’s share of the blame for hundreds of millions of dollars of dark money being spent in federal elections lies with the FEC. The agency should move immediately to fix the obvious problems with its improper disclosure regulations.

The FEC also should move expeditiously to address the Supreme Court’s other erroneous  assumption in Citizens United  that is at the heart of that decision – that spending by outside groups would actually be independent from candidates.

As a result of the FEC’s coordination regulations that fail to comply with the law, coordination between outsider spenders and federal candidates is taking place on a widespread basis.

It is essential that the FEC adopt new coordination regulations to properly implement the statutory definition of what constitutes illegal coordination between outside spenders and candidates — as described by the Supreme Court in a series of cases dating back to Buckley in 1976.

The FEC should also respond to the Supreme Court’s decision in the McCutcheon case by adopting a new regulation to ban joint fundraising committees. Joint fundraising committees are entirely a creation of the FEC’s rules and the agency clearly has the authority to end them.

In the wake of the Supreme Court decision in McCutcheon to strike down aggregate contribution limits, joint fundraising committees are now vehicles for officeholders to solicit and donors to give huge, corrupting six and seven figure individual checks. They provide new opportunities for donors to buy and federal officeholders to sell influence over government decisions through the use of a single huge contribution solicited for and given to a joint fundraising committee. The FEC should prohibit this practice.