The FEC last week approved a Proposed Petition for Rulemaking that seeks agency action in various ways to clarify and strengthen public disclosure requirements and expand, as authorized by Congress, the Administrative Fines Program.
The attorneys filing the Petition represent varied and bi-partisan professional backgrounds and experiences. Their point overall is that, while there are obviously major differences separating the Commissioners on a number of issues, the FEC can take effective action on administrative matters of importance over which there should be little disagreement. One point of departure is bringing order, clarity and consistency to its reporting form and guidance. This is a disclosure program around which the entire “regulated community” can rally, with clear benefits to the public.
Just before the turn of the year, the Tenth Circuit decided that Citizens United, the organization, was entitled to the Colorado campaign finance law’s press exemption and so was not required to file public financial reports when producing and distributing a political documentary. Citizens United v. Gessler, 773 F.3d 200 (10th Cir. 2014). Colorado has construed the exemption broadly to apply to online publications and bloggers as well as to print and traditional media outlets. But the State urged that the Court distinguish between entities about which the voters know or could easily learn something, and those hiding behind empty names lacking cue or content and having no extended operating history that listeners or views could consult for useful information. The latter organizations—the “Citizens for a Better America” or “People for Justice” —are engaged in what it termed called “drop-in advocacy” during election seasons.
The Court, impressed with the distinction, still rejected its application to Citizens United. CU was well known; there was ample information available to anyone caring to seek it out, and the informational interest of voters was adequately protected. On its reading of Citizens United, the Court emphasized the interest supporting disclosure as the voters’ informational interest, not the deterrence of “corruption” or its appearance.
This raises the question: for purposes of the disclosure requirements based on the voter’s informational interest, is it possible to distinguish between an ongoing enterprise of known purpose and the shadowy “drop-in” advocacy group which is often here today and gone tomorrow? And if it is, is that interest served primarily by disclosure of donors, or by other information about its organization and purposes?
Mark Schmitt has written an interesting piece, and Bruce Cain has briefly responded, on the surging skepticism among a distinguished group of scholars about the last decades of political reform. Schmitt respects the skeptics’ work. But he worries that they may also have succumbed to a dangerous naiveté. He means that they may overstate the negative effects of recent reform efforts, as in diminishing the role of parties, and may make too much of what can be accomplished by countermeasures to strengthen the capacity for effective governance. It is fine to say, as these skeptics do, that we should value more a messy and transactional politics by which consensus is forged and accomplishments are possible, but Schmitt insists that we proceed with care, lest we romanticize the time of shady backroom dealing rigged against anyone lacking money and privilege.
This warning seems premature: there is little cause to worry that these skeptics have gone too far, or that their prescriptions would usher in a new Gilded Age of opaque politics full of the risk of corruption and plutocratic control. They still have a fair amount of work to do in pulling the conversation toward a reasonable “middle," away from the exaggerations and distortions of the political reform debate over many years. One challenge has been overcoming the pressures on reform thought from the reform movement.
- Rethinking “Corruption” in Campaign Finance Reform Circles
- A Note on Redistricting Initiatives, Legislatures and the Popular Will
- The Supreme Court and Independent Redistricting Initiatives: Uncertain Effects and Constitutional Doubts
- The Common Cause Report On the “Crusade” Against Campaign Finance Regulation
- The Corruption of Campaigns v. The Corruption of Government
- Cause for Complaint to the FEC
- On the Public Coverage and Discussion of Campaign Finance Issues: The Super PAC Example
- The FEC Hearing and Its Detractors
- The Upcoming FEC Hearing and its Uses
- Mark Schmitt on New Directions in Political Reform