Complex Campaign Finance Laws are Product of Loophole Seeking Players, Inactive FEC and Hostile Supreme Court (The Washington Examiner)

In a recent op-ed, Joe Trotter, Media Manager for the Center for Competitive Politics argues that a chart prepared by the Campaign Legal Center that broadly summarizes the disclosure requirements for political ads shows that the current campaign finance rules are too complex. This may come as a surprise to CCP, but we agree that the current laws have been made unnecessarily complicated, and also ineffective. We are also aware that any attempt to summarize the law in a readable chart requires oversimplifying some important distinctions. That is why the chart expressly states that it "is intended to provide a general summary of federal political advertising rules [and] ... does not capture all of the nuances and exceptions in the law. It should not be relied upon as legal advice for particular circumstances or situations." Thus, contrary to Mr. Trotter's suggestion, the chart was never intended to be a complete statement of the law.

But what Mr. Trotter does not explain is that the law and regulations are complex because over the last 40 years the Supreme Court has engaged in an aggressive rewriting of the campaign finance legislation enacted by Congress, creating a complicated patchwork, some of which makes sense only to the Supreme Court. For example, in the FEC v. Wisconsin Right to Life decision, to which CCP refers, the Supreme Court actually took the straightforward definition of electioneering communication drafted by Congress and previously upheld by the Court in McConnell v. FEC, and rewrote it so there was one definition of electioneering communication for disclosure purposes and a different definition as applied to the prohibition on corporations and unions making electioneering communications. Of course, a few years later in Citizens United v. FEC, the Court effectively struck down the prohibition as applied to most corporations and unions.

At the same time, through deadlocks and occasional actions, the Federal Election Commission continues to create new and creative loopholes to allow the identities of the big donors influencing our elections to remain hidden, while many wealthy individuals, corporations, unions and political groups are constantly looking for ways to widen those loopholes. All of this adds to the complexity of the rules.

In truth, many of those who oppose disclosure will prefer complexity over simple-to-enforce rules. Groups such as CCP have repeatedly sought to wipe the disclosure laws from the books, efforts rejected by the Supreme Court. Those who can afford to spend the big money on campaigns already have access to the advice on how to navigate these waters to keep their identities secret. The more complex and vague the rules, the easier it is for them to convince the FEC that they should not be held accountable for any transgressions, a defense many on the FEC are eager to endorse. In the meantime, the vast majority of citizens are left in the dark about who controls the funding of their elections.

Of course, CLC welcomes suggestions on how to improve its chart and will revise it as appropriate. In fact, if CCP was not so actively opposed to almost all attempts at campaign finance disclosure, it might not only be able to come up with some concrete suggestions on its own, but could become part of a constructive discussion of how to write simple and clear rules that will result in the meaningful disclosure the public deserves.

Larry Noble is Senior Counsel at the Campaign Legal Center. This piece originally ran in The Washington Examiner under the title "A Response on Campaign Finance Reform" on November 4, 2014. To read it there, click here.