Open Mic at the FEC

Posted on February 15, 2015

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Last week, I spent an hour at a witness table next to Shaun McCutcheon. He was the lead plaintiff in the eponymous Supreme Court case that dissenting Justice Stephen Breyer wrote “eviscerate[d] our campaign finance laws.”

Along with Mr. McCutcheon’s lawyer and two others at the table, we were five of the 30 “expert” witnesses who joined one of the panels at a day-long hearing at the Federal Election Commission (FEC).

In addition to hearing from those active in campaign finance matters, the FEC threw its doors open to members of the public eager to share their views about money-in-politics.  It was a full and lively 8-hour day of testimony. The FEC was finally hearing from people other than the very small, narrowly focused community of lawyers who regularly represent candidates, parties and PACs before the agency.

Critics, myself included, often pan the FEC as one of the most dysfunctional agencies in Washington. Its own chairwoman, Ann Ravel, published an op-ed in the New York Times last year detailing how campaign finance violations “are being swept under the rug by the very agency charged with investigating them,” and warning that if the FEC continues “on this path, we will be betraying the public and putting our democracy in jeopardy.” (Read the rest of her op-ed, “How Not to Enforce Campaign Laws.”)

Still, there are glimmers of hope. Last week’s open mic hearing was one of them. The process started late last year when the FEC asked the public to submit comments advising how it should respond to the brave new world of multimillion dollar campaign contributions. Mr. McCutcheon’s Supreme Court case blowing the lids off overall contribution limits was the catalyst.

Over 32,000 Americans responded with written comments – 75% of whom urged the agency to do more to shine a light on election-related spending from secret sources. They’re alarmed by the hundreds of millions of untraceable dollars that are buying influence in our political process, unable to detect who is beholden to whom. Last week’s hearing was an opportunity for those same commenters to testify face-to-face with the six commissioners, on the record. (You can read Common Cause’s formal written comments here.)

The parade of witnesses at the hearing generally fell into two camps: those who want strong laws on the books to curb corruption and expand political opportunity versus those who want to deregulate even further and usher in more money to slosh around our elections.

Take Mr. McCutcheon. He told the FEC that he brought his case because he supports “the right of all of us to participate in the democratic process, as often and wherever we choose.” Sounds as American as apple pie, right? But by “participate,” he wasn’t referring to voting. Obviously, Mr. McCutcheon isn’t entitled to vote “as often and wherever” he chooses. He can (and should!) vote in his home state of Alabama, but he has no right to vote in neighboring Mississippi, for example.

Instead, by “participate,” he’s referring to handing campaign cash to politicians “as often and wherever” he chooses. There used to be an overall contribution limit that stood at a little over $125,000. And individuals were free, of course, to support as many candidates as they wished. But because of his case, a single contributor can now put over $5 million into a single federal election cycle. And as part of December’s CRomnibus vote, Congressraised the ceiling of contributions to political party contributions to over $1.5 million. Only a mighty few can participate “as often and wherever we choose” if democratic participation is measured by the size of our bank accounts.

Mr. McCutcheon’s lawyer, also at the witness table, didn’t mince words. “We don’t need less money in our political process – we need more money in our process,” he told the FEC. “We don’t spend nearly enough on our politics.”

For what it’s worth (hint: a lot), 90% of Americans disagree. Common sense tells them that money buys access and influence, and that it skews public policy in favor of those with the deepest pockets instead of the public interest. In other words, that too much money in our elections undermines representative democracy.

I used my time to talk about how Citizens United and McCutcheon ripped a massive hole in the fabric of our campaign finance laws that exist to prevent democracy for sale. The FEC’s failings are rendering contribution limits increasingly meaningless, as candidates freely solicit (with a wink and a nod) enormous gifts for independent Super PACs created and run by their friends and associates.

Meanwhile, hundreds of millions of dollars evade disclosure through secretive front groups. As one member of the public testified during the open mic period, “if our elections are supposed to be a symphony, undisclosed money strikes one sour note.”

So I reminded commissioners that outside of its street-level windows, the FEC displays three large posters trumpeting its commitment to disclosure. The poster in the middle says that employees inside are “informing the public of the funds raised and spent in federal elections.” Another poster quotes Buckley v. Valeo: “In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.” The third poster quotes Supreme Court Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants; electric light the best policeman.”

The FEC can begin to right its wrongs. Consistent with the Supreme Court’s assumptions in Citizens United (the good part - where 8 justices endorsed transparency in campaign spending), the FEC should update its disclosure rules so that its posters reflect the promise that they represent. It should reform its rules to rein-in single-candidate Super PACs, which exist as nothing more than phantom arms of campaigns that take unlimited amounts of money from any source. A contribution to a Super PAC supporting only one candidate, for example, should count as a contribution to the candidate herself.  But most importantly, the FEC should recommit to enforcing the law and safeguarding democracy.

And perhaps sometimes soon, the FEC should invite the public back to the podium for some good old-fashioned free speech - the kind that doesn’t cost a dime.

Office: Common Cause National

Issues: Money in Politics

Tags: Exposing Corporate Power

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