Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors. The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment. The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.
There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.
The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function. It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries. Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.
Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.” This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.
The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor. It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.” The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.
Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.
Democrats and Republicans are disputing once again the agency’s record in dealing with contributions made to candidates through LLCs without disclosure of the original source.
The Republican Commissioners say that the law is unclear and, absent a clear purpose to evade reporting requirements, there is no justification for enforcement. From the outside, Brad Smith agrees, and he questions why the Democrats won’t give up on enforcement actions on which there is no agreement and simply work on a rulemaking to establish clear, concrete rules.
Commissioners Weintraub and Ravel have replied with a Statement calling into question the Commissioners' good faith on the issue. They were prepared, they note, to dispense with penalties in recent enforcement cases if the Republicans would join with them in a sensible and unequivocal statement of the law, and they don’t accept as sensible an intent or purpose-based test.
Taking the claims on each side at face value—crediting the Commissioners with meaning only what they say—one can ask: what is this argument about? The very skilled Smith has shown that someone so inclined could defend the proposition that that there was really some doubt about the law and a donor might imagine that she could set up an LLC or use an existing one to make a contribution that would be reported only in its name and not in hers . Elsewhere, here included, there has been doubt that there could be any doubt. Lawyers disagree.
But among the Commissioners the legal disagreements are at bottom the product of fundamental divisions over how this law--this kind of law--should be enforced. The Republicans believe, as they long have, that campaign finance laws enacted within constitutional limits should be limited in ambition and very clear. The one goal is related to the other. The narrower in scope, the less ambiguity in the law. Behind this is the fear that laws of this nature are dangerous in potential effect on speech and association. The extent of the danger varies with the extent of the ambition and of the ambiguity. This puts the Republicans on guard, to the point of either paralysis or obstruction, depending on the point of view.
When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony. The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration. The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters.
The EAC then got enough Commissioners for a quorum and full operations. This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC. For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines. The Commission subsequently acted, and it did so unanimously. EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights. There were warm and encouraging words all around.
Brian Newby, appointed Executive Director in November of 2015, has quickly managed to put all of this at risk. Claiming authority to disregard past EAC policy and precedent--and understanding full well that he was ignoring disagreement among the Commissioners and provoking fresh partisan conflict--he purported to consent to state requests to modify the Federal Form for registration applicants to include a requirement of documentary proof of citizenship. On this highly visible and divisive issue, in the face of its long and actively litigated history, Newby concluded that this is what he should do.
- One FEC Commissioner’s Answer to Citizens United
- “Fully Open” After Evenwel
- Parties, Independence and the State of Anti-Corruption Jurisprudence
- Judge Garland and Buckley Jurisprudence in the Citizens United Era
- The Brookings Report on the State Parties
- The FEC and the Case of the LLC
- Still More on the Disclosure Wars: Issues Speech, Both The “Real” and the “Phony”
- More Disclosure Wars–And Little Certainty about the Outcome
- More Complaints about Super PACs
- Justice Scalia and Campaign Finance: A Puzzle (Part II)