Criticism of FEC

At Slate, legal scholar Richard Hasen attacks the GOP commissioners on the FEC:

President Bush quickly nominated in his stead a Republican staffer on the Senate rules committee, Matthew Petersen. That broke the logjam. The Senate quickly approved Peterson and three more FEC nominations: Cynthia Bauerly, a Democratic Senate staffer, Caroline Hunter, a reliable Republican vote during her service on the U.S. Election Assistance Commission, and Donald McGahn, a Republican election lawyer.

McGahn is everything McConnell could have hoped von Spakvosky would be—a strong opponent of campaign finance regulation in an agency charged with writing and enforcing those regulations. And he is so much more. Instead of inviting controversy, McGahn is a smart, under-the-radar ringleader of the Republican commissioners. (His name gets only three hits from Google News in all of 2010.) With Petersen and Hunter, who garner even less attention than he does, McGahn is dismantling the country's campaign finance laws.

The Republican commissioners have eviscerated campaign finance law simply by resisting the enforcement of such laws. Consider the all-important topic of campaign finance disclosure. As part of the 2002 McCain-Feingold reforms, Congress required that virtually all contributions that pay for television or radio ads close to an election and feature a federal candidate must be disclosed in reports filed with the FEC. The disclosure requirement became even more important after Citizens United, because the Supreme Court's ruling for the first time allowed corporations to spend money directly in federal elections. If the corporations can spend money while shielding their activities from public view, they can avoid alienating customers.

Over the summer, the three Republican FEC commissioners blocked an investigation into whether the conservative group Freedom's Watch violated the disclosure provisions by failing to identify its donors. As Paul Ryan of the reform-oriented Campaign Legal Center describes, in a Statement of Reasons explaining the vote, the Republican commissioners made clear that they will not require the disclosure of the identity of a contributor to a group like Freedom's Watch unless that contributor earmarks the money for a specific ad. In other words, unless someone donates with instructions like "Use this money to run an ad on Channel 7 against Barbara Boxer on Sept. 3 at 4 p.m.," the contribution need not be disclosed.

Commissioner statements like this one signal to campaign finance lawyers what their groups can and cannot do. You can imagine the predicate effect of this one: no more disclosure of most contributions funding election ads.