Journalism in the Public Interest

As Political Groups Push Envelope, FEC Gridlock Gives ‘De Facto Green Light’

In a new age of more dollars and less disclosure, the FEC’s ongoing stalemate over key areas of campaign finance gives more aggressive political players a chance to push the limits.


The Federal Election Commission meets to elect a chairman and vice chairman. (Scott J. Ferrell/Congressional Quarterly/Getty Images)

As the presidential campaign swings into high gear, rivers of cash are flowing in to support the candidates, and experts are predicting billions will be raised by next fall. The likely record-breaking donations are thanks in large part to new groups that are taking in unlimited dollars and exploring the outer limits of campaign finance law.

Yet amid this flurry of activity, one player has stayed hands-off: the Federal Election Commission, the agency tasked with ensuring that campaigns and contributors play by the rules.

Faced with recent court rulings rolling back key parts of campaign-finance law — and hampered by a deep ideological divide — the commission has stayed stuck on key questions about how to regulate the rapidly changing world of campaign finance.  

Take super PACs. Arguably the most important campaign-finance innovation in recent years, they have increasingly become a conduit for unlimited donations to fund ads supporting and attacking candidates. Whether through clever ways of funneling money or simply because of the timing of primaries and disclosure deadlines, the true donors in many cases can stay secret until after voters have cast ballots — and sometimes even permanently.

So, how is the FEC regulating these super PACs? Barely. Though the commission has given some guidance on what these groups can and cannot do, it has yet to issue a single rule that specifically addresses super PACs.

“It strikes me as dysfunctional,” said Trevor Potter, a Republican lawyer and former FEC commissioner who founded the Campaign Legal Center, a nonprofit that advocates stronger campaign finance laws. “They’re unable to do their job.”

Campaigns and their supporters, meanwhile, have been pushing the limits on several fronts. For instance, nearly every serious 2012 presidential candidate has benefited from super PACs created by former advisers and aides specifically to support them — a practice that raises questions about the potential for illegal coordination, said Steven Billet, who directs a program on PAC management at George Washington University’s Graduate School of Political Management.

“Some groups, frankly I think, have made a calculation: ‘We think we can get away with it,’” Billet said. “In all likelihood, I think they can.”

Stalemate in a time of sea change

Created in the wake of the Watergate scandal, the FEC is responsible for interpreting and enforcing federal campaign-finance laws. The commission has always been prone to gridlock given its structure of six commissioners evenly divided on party lines, but the divisions have become even more stark as the agency has struggled to address a series of court rulings, including the seminal Citizens United decision, that struck down key restrictions in campaign-finance law.

Nearly two years after Citizens, the FEC still hasn’t begun the process of changing its regulations to comply with the ruling.

The commission’s Republicans want simply to repeal the regulations tied to overturned provisions of law. The commission’s Democrats, noting that the high court reiterated the importance of disclosure, want a new set of disclosure rules to be part of the same discussion. The commission moved twice this year to open the issue for public comment. It deadlocked both times.

The rifts were on display last week in a rare exercise of congressional oversight by the Committee on House Administration — the first such hearing on the FEC since 2004. Pressed by lawmakers about why the commission hadn’t updated regulations to reflect Citizens United, the six commissioners pointed to disagreement over the issues raised by the ruling.

“We’ve fallen down on what we could have done regarding regulations,” Commissioner Steven Walther, a Democrat, told the elections subcommittee.

Contributing to the persistent stalemate is the fact that the current slate of commissioners hasn’t rotated for years, and five of the six are serving on expired terms. By law, commissioners are supposed to serve staggered six-year terms, with two appointments made every two years, but the members may continue as lame ducks if no new appointments are made.

So far, the Obama administration has made only one attempt to seat a new commissioner despite repeated calls from watchdog groups to remake the agency. The nomination was blocked in the Senate, which confirms appointments, and stalled for more than a year until the nominee bowed out last fall. Lacking the appetite for another political tug-of-war, the White House has not made another attempt.

A spokeswoman for the commission declined to comment.

‘A de facto green light’

Ultimately, the FEC is set up in such a way that when the commissioners deadlock, one side comes away with a de-facto win — the side seeking to preserve the status quo.

“If you’re a deregulatory commissioner, you can get a lot done simply by saying no,” said Bradley Smith, a former Republican commissioner who was once a force for campaign-finance deregulation on the commission and now pushes his case through the Center for Competitive Politics.

Nowhere is the default to the status quo more obvious than in the area of enforcement, where a deadlock over whether to impose a sanction essentially closes the case.

Campaign-finance reform groups have consistently criticized cases in which the commission’s three Republicans ignored the recommendations of its lawyers and voted against further investigation or enforcement. In a 2008 case [PDF], the commission had already received a check to cover a civil penalty but deadlocked on whether it was fair to penalize an inexperienced candidate on “hyper-technical rules.” [PDF]

The case was closed, and the check was refunded.

For more aggressive political players, the agency’s inaction on key issues can represent an opportunity.

“The advice to the client has to be that the FEC hasn’t signed off,” said Joseph Sandler, a former Democratic National Committee lawyer who now represents mostly Democratic clients in private practice. But for clients willing to run a risk, betting that the agency won’t enforce sanctions? “Pretty much it’s a de facto green light.”

A less collegial commission

In the last oversight hearing in 2004, Democratic commissioner Ellen Weintraub told lawmakers that the effect of gridlock on the commission was “vastly overstated.” But times have changed, and “those more collegial days,” to quote from one of her statements this year, appear to be over.

“It used to be that commissioners shared a sense that gridlock was a bad thing,” said Weintraub, the commission’s most senior member. She said that’s no longer the case: “You can count the number of times we split. It is demonstrably higher now than it ever has been in the history of the agency.”

Much of the commission’s conflict is rooted in a deep philosophical divide. The more pro-regulation commissioners emphasize that money has a corrupting influence on politics and that the commission has a duty to enforce the campaign-finance laws passed by Congress; the more deregulatory commissioners argue that campaign-finance regulations curtail political expression and that the commission must follow the cues of the Supreme Court.

The panel’s three Republicans, for instance, have blocked sanctions not only against Republican groups and their supporters but against Democrats and major unions.

Smith, a Republican who served on the commission with Weintraub several years ago, said that while he believes the problem of deadlock is overplayed, the current commission does seem “less willing to bend or seek out compromises” than the commission he remembers.

“There is more polarization now than in the past,” said Smith, who said that the lack of compromise cuts both ways. “In that respect, the commission may simply reflect what’s happening elsewhere in Washington.”

235 years, and a handful of “conservatives” on the Supreme Court make a mockery out of democracy.

1775-1783   American Revolution - Won
1798-1800   Franco-American Naval War - Won
1801-1805; 1815   Barbary Wars - Won
1812-1815   War of 1812 - Won
1813-1814   Creek War - Won
1836 War of Texas Independence - Won
1846-1848 - Won
1861-1865   U.S. Civil War - Won
1898   Spanish-American War - Won
1914-1918   World War I - Won
1939-1945   World War II - Won
1950-1953   Korean War - Won
1960-1975   Vietnam War - Won Tactically, Draw Strategically, Abandoned
1961   Bay of Pigs Invasion - Abandoned, generally irrelevant
1983   Grenada - Won, generally irrelevant
1989   US Invasion of Panama - Won, generally irrelevant
1990-1991   Persian Gulf War - Won
1995-1996   Intervention in Bosnia and Herzegovina - Won
2001   Invasion of Afghanistan - Won, Strategic value in doubt
2003   Invasion of Iraq - Won, Strategic value in doubt
2010   Citizens United - Overwhelming Defeat

Shucks…messed it up; 1846-1848 was the Mexican-American war…I was trying to think of a PC way to say “I do believe we’re still making reparations for some reason.”, the phone rang, and I forgot to finish it.

Barry Schmittou

Nov. 7, 2011, 4:53 p.m.

Ms. Wang wrote :

“So, how is the FEC regulating these super PACs? Barely.”

This is one more example of multiple government agencies failing to enforce laws that should regulate elite businessmen who make huge contributions to the leaders of both political parties.

More failures to regulate huge campaign contributors include :

(1) ProPublica wrote these quotes about the DOL’s failure to stop insurance companies that destroy injured contractors lives :

“Workers fought long battles for medical care, including such things as prosthetic devices and treatment for post-traumatic stress.  One official called the system a “fiasco.Labor officials can recommend cases for prosecution to the Justice Department–but have only done so once in the past two decades, according to Labor officials.”

(2) Joseph Belth, Professor Emeritus for Insurance at Indiana University wrote this about the DOL and U.S. governments failure to enforce ERISA laws that govern health care benefits for 150 million workers in America :

“They’ve turned Erisa on its head,”  “It was supposed to protect employees, and it’s being used to protect insurers.”

(3) WFAA – TV in Dallas Texas Wrote :

“a remarkable number of Texans committed suicide because they could no longer endure the pain caused by their injuries and they had been repeatedly turned down for worker’s comp care.”

(During the time period of the suicides AIG rigged billions of dollars in bids to increase sales of Workers Comp policies; No one was prosecuted by Bush and Obama will not investigate !! )

(4) There are so many financial crimes that are being protected by major campaign contributors it will take volumes of books to document them. Wachovia Bank laundered $378 billion for Mexican drug cartels that are responsible for 35,000 murders. No one was prosecuted !! Bank of America, American Express Bank International and Western Union also laundered drug money and no one was prosecuted. AIG, JP Morgan Chase, MetLife, Prudential, Unum, rigged huge bids and no one was prosecuted !!

Evidence and links (including campaign contributions) can be seen by pasting :

Many corporations have received multiple Non Prosecution while making huge campaign contributions !! BUT the U.S. and world leaders often tell us these contributions do not cause politicians to favor the contributor.

Reality proves many of the bribers and bribe takers are destroying the lives of many and destroying the future of our nation and world.

I pray local citizens on Grand Juries will begin indicting leaders of both political parties and the elites who control them very soon.

“The commission’s Republicans want simply to repeal the regulations tied to overturned provisions of law.”

What a surprise.  They would repeal most of the the Constitution if they could.  This happened to us all the time when I worked in Medicare regarding our antiquated anti-trust laws.  A for-profit hospital would move into a town and buy up the only not-for-profit hospital, close it down, and then jack up everyone’s costs.  When we contacted DOJ or the FTC - both with juristiction - all we got was finger pointing and then silence, regardless of which party was in power.  The FEC is a joke, a bigger joke with lawless Republicans on its committee.

Barry Schmittou

Nov. 8, 2011, 10:19 a.m.

Max, your excellent comment could be bullet point five of my comment above. I’m sure there are many more bullet points to add regarding more government agencies refusing to uphold their fiduciary duties and work for the best interest of all Americans. I have nurses and a nursing home accountant who will testify if a Grand Jury ever asks. Thank you for all the information you provide in your comments Max.

Well, of course the FEC isn’t doing anything.  There are no rules for it to enforce!  An afternoon’s work of setting up a Super PAC puts them beyond reach.

The obvious solution (what with the Internet and free televised debates) is to ban all campaign spending and reward the candidates for ratting each other out.  When your opponent can get you thrown in jail, your campaign is going to be pretty clean, and the remaining apparatus vanishes as it harms the candidates it supports.

We need to do away with Citizens United…..we ALL know that a corporation is NOT a person and could NEVER be considered a person.  Why our dysfunctional Supreme Court even considered that vote is amazing, but then again….look at who’s sitting on the Supreme Court???  I think they should be elected rather than given life time jobs on the court.

@ Didi Paano - “We need to do away with Citizens United…..we ALL know that a corporation is NOT a person and could NEVER be considered a person.  Why our dysfunctional Supreme Court even considered that vote is amazing, but then again….look at who’s sitting on the Supreme Court???  I think they should be elected rather than given life time jobs on the court.”

This is the conundrum we face in the next election in a nutshell.  Despite all of his shortcomings - and there are many - if Obama looses we are guaranteed to have five right wing nuts on the high court instead of four, and then, game over.  Justice Stevens wil retire soon.  Citizens United was a debacle but it isn’t the biggest potential debacle on the horizon.  My sense is the whole electorate, especially women - who will be on the receiving end of an immediate Roe v. Wade reversal - need another heavy dose of GOP frontier social injustice more then men to finally wake up and throw these GOP kooks out for at least a generation.

Say what?  Do away with the illegal, illogical, heretical, unconstitutional, apostate, and idolatrous assertion that “corporations” - pieces of paper that are entirely under the control of one or a handful of human beings - are “people”? - the “for sure” URL  - the URL which may turn clickable, depending upon the will of ProPublica and whatever spirits possess the nameservers around the world today.

Citizens United, by the way, is one of my greater proofs that the American right - whether they call themselves Republicans, “conservatives”, or whatever - are atheists *at best regardless of their constant profession of belief in Christianity and other religions in order to subvert true believers.

To hold that “corporations” are “people”...that “corporations” are true descendents of Adam and Eve…that “corporations” are reflections of the face of God?!?!? 

I’m not religious in the televangelist sense, and yet that heresy familiarizes me with the true meaning of the phrase “causes my blood to boil”.

(*Note:  All evidence insists that the name of their god is Mammon.)

I say roll with it.  I mean, if corporations are people, then they’re clearly enslaved, with even their revenue stolen by their masters.  If they want the benefits of corporate personhood, then let them take the responsibilities, as well.

Deprive the CEOs and Boards of Directors of control of the corporation on the basis of the Fourteenth Amendment, make them take the corporation as a dependent (the paternity case is obvious, I think), and they’ll take care of the problem for us.

It worries me that I’m not sure if I’m joking…

(Keep in mind also that any law barring corporate personhood potentially gives a corporate lawyer a cheap defense where a “person” is barred from some action, a fairly common construct.  If a “person” may not murder, for example, then a non-person presumably can.)

Barry Schmittou

Nov. 9, 2011, 12:19 p.m.

I believe corporate personhood is absurd and insane and proves the current Supreme Court unjustly favors the elite.

Combined with government protection of organized corporate crimes that are occurring worldwide, I believe the following Bible verse is the only way to explain these intricate and evil patterns of crimes :

Ephesians 6:12 :

“For we do not wrestle against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this age, against spiritual hosts of wickedness in the heavenly places. Therefore take up the whole armor of God, that you may be able to withstand in the evil day, and having done all, to stand.”

It seems unusual to feel that we are in a supernatural spiritual battle of good verses evil, but almost every law is being turned upside down by the world’s elite while their puppet politicians from both parties lead prayers on TV and promote their allegiance to God. 

There is so much deception and illegal collusion in almost every area of government and many areas of business. I pray God will help us all through the struggles ahead.

Barry Schmittou

Nov. 9, 2011, 12:34 p.m.

ibsteve’s words should be used in every future trial or discussion regarding corporate personhood :

“regardless of their constant profession of belief in Christianity and other religions, to hold that corporations are “people”...that “corporations” are true descendents of Adam and Eve…that “corporations” are reflections of the face of God?!?!?  “That heresy familiarizes me with the true meaning of the phrase causes my blood to boil.”

Notice that the reporter doesn’t even bother to list the commissioners, helping them to preserve their relative anonymity.

This report also begs the question of why someone would serve as a commissioner if they were sincere about carrying out the intended duties of the FEC.

Regulators that can’t regulate because some members of Congress don’t want regulation of anything. This issue carries over to Wall Street too. Republicans want to eliminate regulations there too. As the article indicated, a deadlock on a regu;atory body means keeping the status quo. Little or no regs.

This article is part of an ongoing investigation:
Buying Your Vote

Buying Your Vote: Dark Money and Big Data

ProPublica is following the money and exploring campaign issues you won't read about elsewhere.

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