The Federal Election Commission is gutting campaign finance law.

The law, lawyers, and the court.
Jan. 25 2011 10:13 AM

The FEC Is As Good As Dead

The new Republican commissioners are gutting campaign finance law.

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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.

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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.

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Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.