The Omnibus and the Direction of the Reform Debate

December 17, 2015
posted by Bob Bauer

The agreement apparently reached on the omnibus omits some campaign finance related items but includes others.  The party coordinated spending limits remain in place, while there are provisions blocking IRS and SEC action in the next year to promulgate political spending disclosure rules. For reformers, the results are decidedly mixed, and they are both relieved and exasperated.  And for them and all others, there is also the question of whether this development suggests anything else about the choices faced in the reform debate.

The reading most predictably given the disclosure omissions is that Congress is fighting off transparency measures when these are most urgently needed.  Those who see things in that way hold to the narrative–and, they would say, the experience– of reforms under continuous political and ideological assault.  There is no reason to think that they are entirely wrong – – there are surely some in Congress who yearn to “zero out” disclosure and refuse for that reason to permit the SEC and the IRS to compensate to some degree for the FEC’s shortcomings.

Another reading is that Congress will balk at the fashioning of reform policy by regulatory agencies lacking experience, clear statutory direction and expertise – – maybe, too, the will.  The SEC seems disinclined to move on corporate political spending. The IRS has struggled on (c)(4) disclosure, and there are fair questions to be raised about the tax collector’s place in regulating political activity.  Of course it is understandable that frustration over slow or feckless FEC rulemaking and enforcement has prompted a search for alternatives.  But not everyone is persuaded that the alternatives are advisable.

Reform organizations and allied commentators pressing for these measures can’t think of what else to do.  If the elected and appointed officials actually responsible for making and enforcing campaign finance law won’t do as some insist they should, then it is natural for support to build for assigning the task elsewhere – – in this case, to officials who regulate the securities market and administer the tax code.  It’s a work -around.  And it is not surprising that this way of achieving reform might run into opposition.

The question this all comes to is how the next generation of campaign finance regulation will be made.  By a new congressional enactment facilitated by a reconstituted, progressive court, breaking 5-4 away from the Roberts-era jurisprudence, as Rick Hasen hopes?  By “working around” the legislative and regulatory stalemate with calls on the Department of Justice to enforce criminally what the FEC will not enforce civilly, along with appeals to the SEC and the IRS to act where the FEC won’t? Or by rethinking and rebuilding the sagging structure of limits and disclosure on as strong a bipartisan basis as possible, in the hope that it might then hold for a while?

Leave a Reply