Campaign Finance Enforcement Strategies

November 15, 2013
posted by Bob Bauer

How to establish priorities for the enforcement of the federal (or any) campaign finance laws is a difficult question. Congress has not specified them by statute and as the years go by, the Federal Election Commission has shown less rather than more agreement on what those priorities might be. As a result, sensible prioritization has sometimes gotten lost in partisan and policy conflicts. Adding to the problem is uncertainty about the enforceability of a law that is under pressure from changes in political practice and expanded constitutional limitations on regulatory action. Now the Commission is changing with the arrival of two new Commissioners, and a fresh opportunity is presented for discussion about the elements of a sensible, effective enforcement program. Ann Ravel, one of two new Commissioners, comes to the job with certain priorities in mind: disclosure and, more generally, “enforcement of significant matters.”

This is the issue: what will be considered significant? Because the FECA is a statute enacted in a different time, effective enforcement requires, of course, close attention to changes in campaign finance in judging what is significant. The Commission has had some success from time to time in making these judgments, more of such success than it gets credit for: a notable example is the set of rules governing the financing of Internet communications. This was a high water mark in bipartisan cooperation at the Commission: these regulations were generally well-received on all sides. The light, careful touch the regulators applied was appropriate. And it is called for in other contexts as well, including on certain issues in the enforcement of disclosure rules.

We now have from Professor Ray La Raja a new study that underscores that transparency is a mixed blessing. Raymond J. La Raja, Political Participation and Civic Courage: The Negative Effect of Transparency on Making Small Campaign Contributions, Political Behavior (Oct. 29, 2013). La Raja’s study will contribute to the debate now in progress about the way that transparency rules can weigh on small donors, discouraging them from contributing or causing them to cut back on their contributions. This point is also surfacing in important litigation over the scope of state statutes that compel disclosure at thresholds far lower than even the one set by federal law.

This problem does not seem to be influencing the ongoing reform debate as much as it should. For example, the University of Denver recently produced an interesting report on a reform package meant to guide policy in Colorado and at the federal level. University of Denver Strategic Issues Panel on Campaign Finance, Money, Elections and Citizens United: Campaign Finance Reform for Colorado (2013). The report is naturally concerned with the growing sums of money being spent with no, or limited, public disclosure to influence our elections. Among the recommendations aimed at “big money,” the panel adopted one intended to lighten “small money” reporting: it calls for raising the Colorado disclosure threshold for individual contributions from $20 to $200. The reason that the Panel authors give has to do with the burdens on committees and candidates required to report that level—the “good deal of work” it requires of them. Id. at 38. Missing from the analysis is a sense of the burden on the donor.

The FEC, of course, cannot reduce by administrative the fiat the reporting threshold. It can, however, establish an enforcement program that works in two different directions, each one significant—to achieve compliance with financing restrictions and disclosure designed to avert corruption or its appearance, but also to assure that regulation does not ensnare, and where possible promotes, small donor and other forms of grassroots activity. Should the Commission be able to show that its enforcement strategy looks after those legitimate interests, then its credibility will be strengthened overall on the measures it properly takes to address larger “big money” issues.

Category: Disclosure, Enforcement

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