Democracy Decoded: Episode 4 Transcript

There Oughta Be a Law...

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Simone Leeper: 

Why does American democracy look the way it does today, and how can we make it more responsive to the people it was formed to serve? I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable and inclusive democracy. 

Over the past few episodes of this podcast, we've learned about several campaign finance laws and how they affect our lives through issues large and small. Today, we're going to take a closer look at some of those laws themselves and the gaps in them, as well as the government agency responsible for enforcing them. We'll kick today's episode off by taking a hard look at the Federal Election Commission, also known as the FEC. The FEC is the only government agency tasked solely with overseeing the integrity of our political campaigns. Though that may sound a little dry, it's a hugely important job, and the failure of the FEC to enforce campaign finance laws in recent years has resulted in an explosion of secret spending. This has serious consequences and prevents progress on issues like gun safety, rising healthcare costs and stagnant wages. 

For example, the FEC's failure to act on complaints submitted by the Giffords organization allowed the National Rifle Association to go unpunished for illegally coordinating huge amounts of campaign spending with the Trump campaign and a handful of Senate campaigns over multiple election cycles. But we'll get into the details of that case later. In part two of our episode, we'll dive into some of our campaign finance laws, specifically laws that regulate digital political ads and how they've failed to keep up as we've shifted to living in an increasingly digital world. This is another area of campaign finance law with a potential for devastating consequences when there are gaps in the system. And we certainly saw this in 2016 when Russia published thousands of fake political ads on social media in an attempt to influence the outcome of the US election. 

So first, the Federal Election Commission, the FEC. It's not a name that's familiar to a lot of people, but it may be the most important government agency you've never heard of. That's because it has the power to both make and enforce campaign finance laws. As we discussed in episode two, the agency was created in 1974 in the aftermath of the Watergate scandal. 

 

Shana Broussard: 

Congress recognized that a properly functioning democracy requires a well-informed public and that citizens should know how money is used to influence elections and that they should be armed with that knowledge. So as a result of that, they created the FEC. 

 

Simone Leeper: 

That's FEC commissioner, Shana Broussard. She's a Democratic member of the FEC having served since 2020. She served as chair of the FEC for the year 2021. She was able to offer an insider's perspective on the agency. 

 

Shana Broussard: 

We perform the function of disclosing campaign finance information, enforcing provisions of the law concerning the limits on prohibition of contributions and expenditures. And one thing very unique to this agency is we oversee the public funding of presidential elections. I think most Americans would agree that it's important that we have like very robust laws that limit what I say is the disproportionate influence of wealthy individuals and special interest groups on federal elections. 

 

Simone Leeper: 

I also turned to Adav Noti for more information. Now Vice President and Legal Director at Campaign Legal Center, Adav worked at the FEC for over 10 years and was able to give me more information about how the agency functions. 

 

Adav Noti: 

Anybody basically can file a complaint with the FEC and say, “I think that this candidate or this party or this super PAC is breaking the law,” and then the FEC is required to investigate that complaint and go through a series of steps to determine if the law has in fact been violated and if so, to impose penalties on the violator. 

 

Simone Leeper: 

Okay. But these sound like really important decisions, who at the agency is responsible for determining whether campaign finance law has actually been broken? 

 

Adav Noti: 

The FEC has six commissioners, and no more than three can come from any one political party. So as a practical matter, what that has always meant at the FEC is that there are three Republican commissioners and three Democratic commissioners. They are all appointed by the president and confirmed by the Senate, and it is set up so that four out of the six have to agree to conduct an investigation or to impose penalties on a law breaker. Because there are three Republican commissioners and three Democratic commissioners, that requirement for four commissioners to agree means that any decision has to be bipartisan. 

 

Simone Leeper: 

This sounds like a great setup – in theory –  but as we know from many areas of life, theory and practice don't always intersect well. How has the FEC set up played out in real life? 

 

Adav Noti: 

The theoretical way that the FEC functions as a law enforcement agency is not at all how it actually functions in reality. And that is because at each stage of the enforcement process, the FEC's six commissioners need to vote on whether to go to the next age of enforcement. And for many years now, more than a decade, there have been at least three commissioners on the FEC who have refused to allow pretty much any enforcement matter to get to the next phase, to even get beyond the preliminary phases. And so what happens with almost every law enforcement matter at the FEC is that they deadlock, they tie three-to-three. Three commissioners voting to open an investigation and three voting not to open an investigation. And that is how the overwhelming majority of enforcement matters at the FEC die. And that is how they have been dying for more than a decade now. 

 

Simone Leeper: 

This is an incredibly important component of our campaign finance system, and when it comes to enforcement, it's basically not even functional most of the time. How did this come to be? Was it always this way? Commissioner Broussard, who started at the agency in 2008 and worked there for over a decade before being nominated and confirmed as a commissioner, filled me in on how things have changed over the years. 

 

Shana Broussard: 

So when we talk about what the change is, I will say this, there is no change in the level of quality and dedication that the staff provides. The quality of work that's being done is second to none. The only change that's happening is at the commissioner level and having been at the commission for such a significant period of time, I can see that change went into effect personally, 2008 on, or maybe it's a basic disagreement on how rigorously to enforce campaign finance laws on the book. But there is a clear pattern over the last dozen years or so for emerging deadlock at the commission. 

 

Adav Noti: 

Just to be clear, the current ideological division is not about Republican commissioners trying to protect Republican candidates, and Democratic commissioners trying to protect Democratic candidates. It is ideological. It is not partisan. So the commissioners who do not want to enforce the law, don't want to enforce it against anybody regardless of party. They just do not believe that the law should exist and will never vote to conduct an investigation or impose significant penalties in any but the most routine and unremarkable cases. 

 

Shana Broussard: 

I've thought about it particularly as being the chair of the agency for the year, and I don't know that I can see a clear answer to reverse the trend because this is rooted in how this organization was created. 

 

Adav Noti: 

The structure of the agency with an even number of commissioners and essentially a super majority required to conduct any law enforcement is a fundamental problem, and that needs to be fixed. And only Congress can fix that because it is baked into the law that created the FEC. 

 

Simone Leeper: 

It sounds like the FEC used to function a lot better as an organization. In the '90s, for example, deadlocks among commissioners were very uncommon and the agency was relatively functional. So how has the agency changed so much in recent years? And is it possible for that change to be reversed? 

 

Adav Noti: 

The big change can be traced to Senate leadership. So the president has to nominate people of the FEC who are not of the president's party because of the party requirements for who can serve on the FEC. So generally, it is the leadership of the other party in the Senate who decides who gets those seats. For some time now, the Senate Republicans have been led by Senator Mitch McConnell, who is the biggest opponent in federal government of campaign finance law. He is ideologically opposed to campaign finance law and always has been, and it is a top priority to him to dismantle the protections around our campaign finance system. And so as long as Senator McConnell is determining half of the members of the FEC, we have had and will likely continue to have at least three members of the commission who are opposed to the mission of agency. 

 

Simone Leeper: 

This all sounds really frustrating, especially for everyday Americans whose voices in politics are supposed to be protected by our campaign finance laws. The obvious questions that follow are what are the consequences of the FEC’s in-action? What happens to a case when it comes before the FEC and the commissioners deadlock? Adav had a very interesting example to share involving the National Rifle Association, the Trump campaign and some high-profile Senate campaigns. 

 

Adav Noti: 

After Citizens United, corporations are allowed to spend money in federal elections, but they can't do it in coordination with candidates. A candidate can't say to a corporation, "Hey, could you spend some of your corporate money supporting me for office?" Because that's the same essentially as the corporation giving money to that candidate. For many years, the National Rifle Association, which is a corporation, violated that ban on coordination with candidates and did it by spending millions of dollars in coordination with a whole series candidates, candidates for Senate, mostly, but also the Trump campaign in 2016. 

Campaign Legal Center Action and the gun safety group Giffords filed a number of complaints with the FEC, alerting the agency to this illegal coordination between the NRA and these candidates. And the FEC failed to act on those complaints. And so CLC Action and Giffords sued the FEC to try to force the agency to enforce the law because there were tens of millions of dollars of illegal spending happening in election after election in coordination between the NRA and candidates. 

 

Adav Noti: 

And after several election cycles of this going on, a federal judge finally had had enough and said, if the FEC is not going to act, then the law needs to be enforced. And the federal court authorized CLC Action and Giffords to file suit directly against the NRA to enforce campaign finance law. And that suit is pending now. It's good that there is going to be accountability for those very, very significant violations of federal law, but ideally, the FEC should have enforced the law in the first place. It shouldn't be necessary for groups like Giffords and CLC Action to have to litigate in federal court for years just to get the opportunity to hold law breakers accountable. 

 

Simone Leeper: 

Wow. Does this kind of thing happen with a lot of cases? 

 

Adav Noti: 

There are dozens upon dozens of enforcement matters that are languishing at the FEC right now —  important matters going back to the 2016 election, the 2018 election, certainly the 2020 election. The FEC has not been a functional law enforcement agency for a very long time, and so basically, any serious violation of federal campaign finance law that has happened in the last 10 years has either been dismissed by the FEC due to a partisan deadlock, or is languishing there right now. 

 

Simone Leeper: 

It really seems like something needs to be done about this and soon. So I asked Adav what he would like to see happen at the agency going forward. 

 

Adav Noti: 

There have been bipartisan proposals in Congress for several years now to change the FEC from a six-commissioner structure, with three Republicans and three Democrats, to a five-commissioner structure, with a simple majority vote needed to enforce the law. It's also possible that the Biden administration could nominate more effective commissioners and those nominees could believe in the mission of the agency and take it upon themselves to revitalize its law enforcement function. Realistically, I think both of those developments are an uphill battle in the current Congress. And so the challenge that the FEC is going to face is that it's going to continue to try to have to do its job while it's being run with half of the commissioners who don't want the FEC to succeed. 

 

Simone Leeper: 

This sounds like an impossibly challenging situation, but despite all of this, Commissioner Broussard remains committed to doing her job to the best of her ability under the circumstances. 

 

Shana Broussard: 

This agency accomplishes so much with so few people with a budget that has not kept up with the need of the agency over the course of the election cycles. Money has gone into the campaign process from 2008 onward. Particularly after 2010 Citizens United, the money has poured in and the individuals at this agency remain committed to making sure that we can get disclosure out there as much as possible. The nuances of the job will continue to amaze me every single day because it is looking at the law and trying to apply the law, without looking at the politics of what's happening outside, and remembering that my job and what I view my mission is, is to strengthen our democracy and protect the integrity of the campaign finance process. 

 

Simone Leeper: 

So now we've heard not only how important the FEC is to our democracy, but also how devastating the consequences are when it fails to do its job. In the second half of this episode, we're going to take a closer look at some of those consequences, namely the explosion of digital political ads in recent years, and how the failure of the FEC to enforce the law, along with the holes in our existing campaign finance laws themselves have enabled bad actors to intentionally deceive voters, an attempt to shift the outcomes of our elections. 

Political advertising has certainly changed a lot over time, and one of the most dramatic shifts has come in recent years with the rise of online advertising, particularly on social media platforms. To start off, I think it's helpful to just check in again with Adav Noti and take stock of where we are today versus even 10 or 15 years ago. 

 

Adav Noti: 

Spending on political advertising over the last 10 years has changed enormously. Digital advertising has gone from a relatively small fraction of political spending. It has experienced exponential growth and will probably soon overtake traditional advertising — meaning television and radio and print — and become the dominant form of political advertising. The other big change in the landscape is who is doing the advertising. Before 2010, most advertising was done by candidates and political parties. After the Supreme Court's decision in the Citizens United case in 2010, corporations were then allowed by the Supreme Court to spend money in elections, and so there was a huge increase in corporate spending, both for profit and nonprofit corporations. So there is more money being spent, there are more spenders — including corporations and interest groups — and money is increasingly being spent on digital advertising, and less on television and radio. 

 

Simone Leeper: 

Members of Congress have also taken notice of this profound shift to more online political advertising and more money being spent on it. I spoke to someone who had more insider knowledge about the reaction on Capitol Hill. Lindsey Kerr worked on Capitol Hill for about 10 years. Most recently, as chief of staff to Senator Amy Klobuchar, Democrat of Minnesota. When I talked to Lindsey about online political advertising, she brought some shocking statistics. 

 

Lindsey Kerr: 

Well, I mean, it's just completely exploded, right? $1.4 billion had been spent on online political ads in the 2016 election. From 2018 to now, it's $2 billion. There's been 14 million ads and 100,000 advertisers. That's where the eyeballs are now. And it's not just political advertising that is exploding online. It's all advertising that is going from traditional modes to online. 

 

Simone Leeper: 

Lindsey also raised an important distinguishing feature of online political advertising. 

 

Lindsey Kerr: 

You can do things with online advertising that you can't do with traditional advertising. So you could send an ad to a specific type of person and you can target that ad to them. And it can be totally private and totally without anyone else's eyeballs, society out there to say, "Hey, wait a minute. That's not right." We saw things like targeting ads to African Americans during the election that said things like, "Don't wait in line to vote, text your vote." And then had this number to text your vote, which is — you can't text your vote —  but it was specifically designed to suppress votes of people of color. And you can imagine a million different ways that sophisticated actors online could target ads to specific segments of the population. 

 

Simone Leeper: 

And this is exactly what's been happening. Bad actors have been posting political ads on social media designed to intentionally mislead voters, and this has resulted in very real consequences. 

 

Adav Noti: 

There are examples from 2016, for example, the Russian government running ads targeted to extreme left-wing and extreme right-wing voters, essentially saying, "The other side is coming for you. The other side is trying to take away your rights, your freedom. You need to fight back." And doing it with very incendiary language. There's even an example where ads run by the Russian government targeting left-wing and right-wing people resulted in physical confrontation where the Russian government ran ads telling both sides to come out for a rally in a town, and it worked. Hundreds of people actually showed up in response to these ads thinking they were real and ready to engage in violence, potentially. Neither the Federal Election Commission nor Facebook did anything about it despite being alerted to this sort of activity. 

 

Lindsey Kerr: 

We did investigations. We learned the extent to which the Russians had, what is a significant and sophisticated operation, where there were thousands of trolls hired to impersonate people online. But I think one of the most alarming things, — I think certainly for people like my boss Senator Klobuchar and others — was the extent to which the platforms were not in any way policing what was happening, or even to some extent aware of it. 

 

Simone Leeper: 

With so much money having moved online and considering the power these advertisements have to influence our government and our votes, you would think our regulation should have kept up to keep these things in check, especially those concerned with transparency of political ads, but as Adav explains, they haven't. 

 

Adav Noti: 

There are laws on the books that require political advertisers to identify themselves and their ads so that the people who are seeing the ads know who's running it, and in some cases, to make financial information available, usually to the Federal Election Commission and thereby to the public, so that people can know who's paying for these ads and who's paying pretty significant amounts of money to try to influence the results of federal elections. The problem is that the Federal Election Commission has completely fallen down on the job of enforcing the rules about transparency, especially on digital advertising. And so we have a total Wild West situation right now when it comes to digital political advertising, where major ads on major platforms are being run without identifying who's paying for the ads, or using fake names on the ads, or being targeted to really small numbers of voters in a way that is very dangerous for transparency and dangerous for the system. 

 

Simone Leeper: 

This sounded bad enough. But as Adav went on to explain, the term digital ads doesn't just refer to ads shown on social media. Ads on every digital platform are being left unregulated at the moment. That includes things like TV streaming services. 

 

Adav Noti: 

It's not TV in sort of the legal sense of being broadcast or over the air or through a cable wire, it's being transmitted over the internet. While it seems like that shouldn't matter to the viewer, behind the scenes it matters quite a bit, and the Federal Election Commission has drawn really bizarre and arbitrary lines about what is television versus what is digital television. And so increasingly tens of millions of Americans are sitting on their couches and they're watching—to them, they're watching television, they're watching it on Hulu or some other service, but the political ads they see at election time are going almost completely unregulated. And that is going to be a real problem in future elections. 

 

Simone Leeper: 

So despite the failure of the FEC to act on this issue, there have been efforts by lawmakers in recent years to try to close some of these loopholes. One such effort was called the Honest Ads Act. I spoke to another Capitol Hill insider, Truman Anderson, to learn more about the bill. Truman was formally the chief of staff to the late Senator John McCain, who was part of a bipartisan effort to address this issue. 

 

Truman Anderson: 

The act was simple logical extension of the requirements that were incorporated in the Bipartisan Campaign Reform Act, being extended to the new media. We discovered certainly by the 2016 elections that our imperfect system of restraints on campaign spending was really being severely challenged by the nature of internet communication. So the idea of the act was to attempt to extend those restrictions on spending disclosure, making people responsible for the political speech that they engaged in. I would love to see the Congress stand up and legislate responsibly and take care of this problem, which unlike some of the other regulatory questions that confront us with the internet, this one is just fundamental to our ability to protect our democracy and have it run in a transparent and open fashion. 

 

Simone Leeper: 

This seems like common sense. Unfortunately, that isn't what's been happening. The United States Senate has failed to pass proposals that would update our laws to protect voters right to know who is spending big money to influence our government and our votes. So without legislation, what are we left with? Are there ways voters can access basic transparency? And if so, are those ways enough? 

 

Lindsey Kerr: 

The one sort of, I would say, cool thing about this is realizing the power of folks advocating on the Hill and off the Hill. What happened is the platforms actually voluntarily complied with a lot of the Honest Ads Act, and it's the reason we have some of the information we do. Platforms like Facebook and Google set up libraries of political ads and started disclosing some of the information. It's certainly not perfect, but it allowed people who watch the space — academics, groups, government —  to have more information. 

 

Simone Leeper: 

Is that the solution then? Should we be relying on the platforms themselves to disclose the information? 

 

Lindsey Kerr: 

If Senator Klobuchar were here, she would say, there is no substitute for actual laws on the books, rules of the road to regulate platforms when it comes to this, so that there's rules that apply to everybody when it comes to online political ads. And I think that lack of transparency and accountability when it comes to laws on the books for political advertising is feeding into so much confusion and lack of trust in our institutions, which is really dooming our democracy. 

 

Simone Leeper: 

After having heard all this, I wouldn't blame you for feeling frustrated, but there are also reasons to be hopeful. We have solutions. We just have to gather the momentum to pass them. We can put pressure on our representatives in Washington to do something to restore transparency in our political system. If we continue to let our elected officials know this matters to us, we will have a greater chance of getting solutions passed. 

Special thanks to Adav Noti, Commissioner Shana Broussard, Lindsey Kerr and Truman Anderson for appearing in this episode. You can find additional background information on the topics discussed in the show notes, along with the full transcript of the show. 

This podcast was produced and written by Casey Atkins and Brendan Quinn, with additional script writing by Bryan Dewan. It was edited by Parker Podcasting and narrated by me, Simone Leeper. Democracy Decoded is a production of Campaign Legal Center, a nonpartisan, nonprofit organization, which advances democracy through law at the federal, state and local levels, fighting for every American's right to responsive government and a fair opportunity to participate in and affect the democratic process. You can visit us on the web at campaignlegalcenter.org.