Perspectives on Campaign Finance Reform in the Next Phase

December 15, 2014
posted by Bob Bauer

The Washington Post sensibly suggests that campaign finance reform policy must be recast and that this a job for Congress. The paper’s perspective on the current state of affairs is bleak. Post editors are unhappy with the permissive rulings of the Supreme Court and about the expanded realm of what is often, usually imprecisely, referred to as “dark money.” But their emphasis is on “new ways” to improve the law and its enforcement. They suggest a focus on transparency and they call on Republicans who will soon control the Congress to reconsider their reversal on disclosure policies.

At least we could have that discussion and will be far better than, for example, more of the same quarrels about what the Federal Election Commission can accomplish on its own. The answer to that is: not much. Division on the Commission gets the most attention but it is only part of the problem. The agency is working with rules largely designed in the 1970s that are poorly matched to contemporary realities, including contemporary political practice and a transformed constitutional jurisprudence. The advantage in this day and age on close or contested questions lies with the spender, not the regulator.

Meanwhile, the Commissioners continue to fight one another over fairly minor questions like whether Commission staff should be permitted to consult news publications in deciding whether to recommend the initiation of enforcement actions. As has been true for years, the Democratic side of the commission wants to give the staff more of a free hand, and the Republicans would strongly prefer them to have less. Democrats argue that at stake is vigorous enforcement and charge that the Republicans don’t want it, while the Republicans assert the real issue is whether the Commission makes decisions or its staff does.

This has been going on for a while. Of course, the vigor of Commission enforcement will not turn on whether staff members are permitted to read the newspapers while evaluating complaints. Democrats are likely to overstate the importance to enforcement of giving staff this liberty, and the Republicans, in turn, will exaggerate the threat that this would pose to everyone else’s liberty. This is just another example of an agency locked into old battles when no one seems to be able to see a way out of them.

The Post’s point, correctly, is that the campaign finance laws are in disarray, and legislators should be responsible – – not the FEC, not the courts – – for coming up with fresh ideas. It seems also that a good place to start would be disclosure policy. Among the reasons for this: the Court has kept open the avenues for Congressional action on disclosure. And there are specific proposals for which there might be potential for bi-partisan discussion. These include:


Evaluating Current Reporting Standards: raising the size of the contribution for which detailed personal information must be provided on the public record;


Adapting Disclosure Policies to New Modes of Communication: reconsidering and revising the application of disclosure policies to various uses of new communication technologies;


Resolving Disclosure Questions for “Electioneering Communications”: for this kind of corporate or union paid advertising within pre-election periods, determining appropriate reporting standards and not leaving these decisions to protracted litigation and successive FEC rulemakings;


Addressing the Scope of Disclosure for independent Expenditures: considering the scope of disclosure, beyond the total amount spent, perhaps by examining proposals like the one Bruce Cain has made for “semi – disclosure” that identifies the interests behind spending without full reporting of contributor personal information.


This is all fairly basic stuff, which is not to say that it would be simple to resolve on a bi-partisan basis. But unlike other questions that have become the staple for fruitless discussion, such as how much money in politics is too much, or whether a candidate has been too cozy with a group claiming legal “independence,” the conversation could begin with a general recognition that transparency requirements (a) have been in place for many years and have widespread in support in principle; (b) ought to provide the public with a reasonable amount of useful information; and (c) should be evaluated in light of changes in spending and concerns about the balance between privacy and disclosure.

If no progress can be made on transparency issues, little can be expected on any other, and it will not make a whit of difference if FEC enforcement lawyers are allowed to read news stories.

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