In a letter to President Obama today, the Campaign Legal Center joined with eleven other organizations in criticizing the Administration’s lackluster response to a petition signed by 27,000 Americans calling on the President to appoint new commissioners to the Federal Election Commission (FEC).

“27,000 Americans urged the President to appoint new Commissioners to the FEC and at least attempt to fix a broken agency.  Four months later in response they received a form letter e-mail that says nothing and commits to nothing,” said Meredith McGehee, Campaign Legal Center Policy Director.  “To say the response was underwhelming would be an understatement.  At the end of the day, the petition process looks like a cynical gimmick. ”

The groups signing the letter along with the Legal Center included: Americans for Campaign Reform, Citizens for Responsibility and Ethics in Washington, Common Cause, CREDO Action Network, Democracy 21, League of Women Voters of the U.S., MapLight, Public Campaign, Public Citizen, United Republic and U.S. PIRG

June 19, 2012
 
President Barack Obama
The White House
1600 Pennsylvania Ave., NW
Washington, D.C. 20500
Dear Mr. President:

Our organizations read with great disappointment the White House’s lackluster response to our petition calling on you to nominate new commissioners to the Federal Election Commission (FEC).  We went to great effort to garner the signatures necessary for the White House to respond.  Given Friday’s letter, it is safe to say that the Administration’s response was not just disappointing to us, but undoubtedly let down the over 27,000 Americans who joined our call and signed the petition.

After waiting four months, we found your response – delivered after 5:00 p.m. on a Friday evening – uninspiring and uninformative.  It offered only vague, generic support for enforcement of our nation’s campaign finance laws.  Essentially, this tepid response demonstrates that after nearly four years in office, you do not consider fixing the FEC a priority.   

Your response indicates that "the Obama Administration is committed to nominating highly qualified individuals to lead the FEC."  After three and one half years of your Administration, however, we see little evidence of actual commitment; repeated statements are not a substitute for real action.

We therefore urge you to act immediately to nominate commissioners so that they can be appointed to the FEC at the next congressional recess.  Such recess appointments would allow the FEC to function to protect our democracy in this election year.

As repeatedly shown, the FEC is a dysfunctional agency that consistently refuses to enforce federal campaign finance laws enacted to prevent the corruption of federal officeholders and government decisions.  Five of the six current commissioners are serving despite expired terms, and three openly flaunt their routine refusal to enforce existing campaign finance laws, even where the FEC’s professional staff has called for an investigation.  The FEC deserves commissioners who will faithfully enforce existing campaign finance laws and close existing loopholes.  But the process of nominating new commissioners begins with you.

During your 2008 presidential campaign, you promised to appoint commissioners committed to enforcing our nation’s election laws.  With the exception of one unsuccessful attempt in 2009, however, you have failed to nominate anyone to replace any of the five lame duck commissioners. Our petition offered you an opportunity to remind the FEC that taxpayer dollars will pay the salaries only of federal employees who fulfill their responsibilities.

While reform opponents in Congress certainly are to blame for their stubborn refusal to pass tougher disclosure laws, the national scandal at the FEC is your responsibility to address.  The agency will not change until you exercise your executive branch authority to nominate new commissioners.  Nominating commissioners based on merit and qualifications may well create conflict with congressional leaders accustomed to choosing commissioners themselves.  Given the completely dysfunctional state of the FEC and the enormous damage that has been done to our campaign finance laws, however, this is a fight worth having. 

The effort to remake the FEC and restore the enforcement of our campaign finance laws cannot begin until you nominate new commissioners.  Our coalition and an overwhelming majority of Americans strongly support your taking this important step on the road to reforming the FEC.

Sincerely,

Americans for Campaign Reform
Campaign Legal Center
Citizens for Responsibility and Ethics in Washington
Common Cause
CREDO Action Network
Democracy 21
League of Women Voters of the U.S.
MapLight
Public Campaign
Public Citizen
United Republic
U.S. PIRG

The Federal Election Commission (FEC) was unable to agree that ads proposed by the 501(c)(4) group American Future Fund (AFF), using recordings of President Obama’s voice and the phrases “the White House” and “the Administration,” refer to a “clearly identified candidate” and therefore constitute “electioneering communication” subject to disclosure laws requiring the group to reveal its funders.  The FEC deadlocked on 5 of 8 proposed advertisements submitted in AFF’s Advisory Opinion Request (AOR 2012-19).

“Electioneering communication” is a broadcast ad within a defined pre-election time frame that “refers to a clearly identified candidate for Federal office.”  An FEC regulation defines the phrase “refers to a clearly identified candidate” to mean: “[T]he candidate’s name, nickname, photograph, or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference. . . .”

Referring to the FEC deadlock, Paul S. Ryan, Campaign Legal Center Senior Counsel said: “The FEC should have responded to this question from AFF in much the same way that Washington Nationals rookie phenom Bryce Harper did when he was recently asked an equally preposterous question: ‘That’s a clown question, bro.’” Ryan added:  “AFF is clearly playing games for the sole purpose of hiding their donors from voters.  And the FEC’s three Republican commissioners would be happy to let them get away with it, deliberately undermining laws passed by Congress.”

“The failure of the three Republican commissioners to find that five proposed ads by the American Future Fund are covered by the campaign finance laws is a joke,” said Democracy 21 President Fred Wertheimer.  “The proposed ads by American Future Fund are nothing more than a blatant effort to circumvent the recent federal district court decision that groups that run electioneering communications must to disclose their donors.  The three Republican Commissioners are serving as enablers and trying to help the American Future Fund disregard the campaign finance laws and a federal court decision.”

On May 11, the Campaign Legal Center, together with Democracy 21, filed comments urging the FEC to reject the AFF attempt in its AOR to avoid filing electioneering communications reports and disclosing donors.  AFF had asked the agency whether eight submitted television advertisements would trigger the reporting requirements for electioneering communications.

Seven of AFF’s eight proposed ads identify President Obama without actually using the phrase “President Obama” — instead making repeated references to “the White House,” “the Administration,” or “Obamacare,” displaying images of the White House and in one instance even using a recording of President Obama’s voice.

The three Republican commissioners only broke the deadlock to agree that references to “Obamacare” and “Romneycare” were unambiguous and that identifying a cabinet secretary did not meet the definition.

To read the comments filed by the Legal Center and Democracy 21, click here.

Today, the Campaign Legal Center, along with seventeen other organizations, called on Senate appropriators to stop a House Appropriation subcommittee rider to block funding for a Federal Communications Commission (FCC) regulation that broadcasters post their public political files online.

“The rider on the House Appropriations bill is nothing more than a thinly veiled attempt to deny public access to public information,” said Meredith McGehee, Campaign Legal Center Policy Director.  “The FCC's new rule simply updates for the 21st Century laws that have been on the books for decades.  The Senate should stop this misguided effort in its tracks."

Last week a House Appropriations Subcommittee, on a party-line vote, attached a rider to the FY 2013 Financial Services and General Government Appropriations bill that would withhold funding for the implementation of a FCC regulation requiring broadcasters to post online requests made for political advertising time.  Under a decades-old statute, TV broadcasters must maintain files about requests for political advertising time, which includes information about when the spots aired, the rates charged, and the classes of time purchased.

However, broadcasters and their friends in Congress are fighting to maintain a 20th Century status quo that requires the public to travel to each station to view each and every “public” file to verify that broadcasters are meeting their legal and public interest obligations.  These obligations are ones that the broadcasters freely undertook in exchange for their free use of the publicly-owned airwaves.

The groups signing the letter along with the Legal Center include: Access Humboldt, Americans for Campaign Reform, Center for Creative Voices in Media, Center for Responsive Politics, Common Cause, Common Frequency, Democracy 21, Free Press, Media Action Center, National Alliance for Media Arts & Culture, Norman Lear Center, Annenberg School for Communication and Journalism University of Southern California, OMB Watch, Public Citizen, Sunlight Foundation, Unitarian Universalist Legislative Ministry of Florida, United Church of Christ, Office of Communications, Inc. and Wisconsin Democracy Campaign.

The full text of the letter follows below.

June 13, 2012

 
The Hon. Daniel Inouye                                  The Hon. Thad Cochran
Chair, Appropriations Committee                 Vice Chair, Appropriations Committee
S128-Capitol                                                     S-146A Capitol
Washington, DC  20515                                 Washington DC  20515
 
The Hon. Richard Durbin                               The Hon. Jerry Moran
Chair, Subcommittee on Financial               Ranking Member, Subcommittee on
Services & General Government                   Financial Services & General Government
Dirksen 184                                                       Hart 125
Washington, DC  20515                                 Washington, DC  20515
 
Dear Sirs:
 
We the undersigned organizations strongly urge you to oppose any effort to include language in the FY 2013 Financial Services and General Government Appropriations measure that would block or hinder implementation of the new Federal Communications Commission rule requiring broadcasters to put their political files online.  Such a misguided measure was included as a rider in the companion measure recently passed by the House Subcommittee.
 
The Supreme Court in the Citizens United decision held that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” The Court has specifically addressed the benefits of online access to such information, stating that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
 
To this end, the recent decision by the Federal Communications Commission (FCC) to require television licensees to post the information in their political file on the FCC’s website furthers these goals by increasing the availability and transparency of the political interests using the public airwaves to persuade the American electorate. It also brings broadcast recordkeeping practices into the 21st Century.
 
Because of the importance of these political records we are disappointed that the broadcast industry – which stands to make over $3 billion in political ads this election cycle – is actively opposing this important transparency initiative.
 
Broadcasters' complaints that the new rules are burdensome are misguided, if not nonsensical. The FCC has not required any new records or additional information collection from television broadcasters. It is simply requiring that broadcasters replace their existing paper records with electronic ones, a transition that will ultimately be more efficient and cost effective for broadcasters. Television stations already keep the vast majority of these records in electronic form, and currently must download and print out any such documents and organize them in their paper political files. In fact, the new online file rules actually diminish the recordkeeping burden on television broadcasters.
 
Likewise, broadcaster claims that political file information is proprietary are also unfounded. The laws that have been on the books for decades make clear that Congress intended the information in the political file – which includes requests for and purchases of political ads – to be made publicly available. Thus, the transition to an online public file will ensure that members of the public can enjoy fuller and more meaningful access to the broadcast records they already have a right to view.  That some broadcasters would in essence attempt to make it as difficult as possible for the public to access these records is inconsistent with their duties as licensees and trustees of the public airwaves.
 
The broadcast industry’s efforts to block what is otherwise a non-controversial, administrative procedure should be rejected. We urge Committee Members to oppose all efforts to place a rider on any appropriations measure that would delay or weaken the FCC’s common sense update of a regulation that moves television stations’ political files online.
 
Sincerely,
 
Access Humboldt
Americans for Campaign Reform
Campaign Legal Center
Center for Creative Voices in Media
Center for Responsive Politics
Common Cause
Common Frequency
Democracy 21
Free Press
Media Action Center
National Alliance for Media Arts & Culture
Norman Lear Center, Annenberg School for Communication and Journalism
University of Southern California
OMB Watch
Public Citizen
Sunlight Foundation
Unitarian Universalist Legislative Ministry of Florida
United Church of Christ, Office of Communications, Inc.
Wisconsin Democracy Campaign
 
cc:        Full Senate Appropriations Committee

Today, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court ruling upholding FEC rules governing donor disclosure in The Real Truth About Obama (RTAO) v. FEC.   The suit specifically challenged the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.

“This unanimous decision from the Fourth Circuit represents the latest in a string of victories for political transparency in the courts against a concerted nationwide litigation effort seeking to eliminate or cut back disclosure laws at the federal and state level,” Legal Center Senior Counsel Tara Malloy stated.  “The public deserves to know who is footing the bills for the political advertising that can make or break candidate campaigns. The Supreme Court, even in its controversial decision in Citizens United, made it abundantly clear that disclosure of political spending is vitally important to our democratic process.”

This appeal to the Fourth Circuit is the latest development in the long-running proceedings in RTAO v. FEC.   The group originally challenged a number of FEC rules, including the rule implementing the electioneering communications funding restriction that was adopted after the Supreme Court’s 2007 decision in Wisconsin Right to Life v. FEC (11 C.F.R. § 114.15).   The district court and Court of Appeals upheld all of the challenged rules in 2008 and 2009.  Subsequent judicial decisions, most notably Citizens United v. FEC, mooted much of the case, however.  Consequently, in April 2010, the Supreme Court vacated the 2009 Court of Appeals’ decision, and remanded the case for further consideration in light of Citizens United and “the Solicitor General’s suggestion of mootness.”  Upon remand, the district court again considered and rejected the two remaining claims relating to the “subpart (b)” definition of “expressly advocating” and the FEC’s “major purpose” methodology in June 2011.

To read the decision of the Fourth Circuit, click here.

The Legal Center, along with Democracy 21, has filed several amici briefs in the case dating back to 2008.  To read the brief filed with the Fourth Circuit on October 27, 2011, click here.

Yesterday, by an 8-4 party-line vote, House Republican Appropriators on the Financial Services Subcommittee voted to keep voters in the dark about who is spending what in our upcoming elections.  The FY13 funding bill reported out of Subcommittee included a rider prohibiting the Federal Communications Commission (FCC) from implementing a new order requiring broadcasters to put their political files online instead of on paper.

“Broadcasters have already filed a lawsuit in an attempt to avoid making their public files truly public, but now they are also calling in their chits with their friends on Capitol Hill,” said Meredith McGehee, Campaign Legal Center Policy Director.  “Rep. Jose Serrano (D-NY) is to be commended for offering an amendment to strip the language from the bill.  As this measure moves through Congress, the Legal Center will continue to push for a final measure without this offending rider.”

Under statutes that have been on the books for decades, TV broadcasters must maintain files about requests for political advertising time.  That information is  open to public inspection and includes information about when the spots aired, the rates charged, and the classes of time purchased.

“The claim by House Appropriations Committee Chair Hal Rogers (R-KY) that ‘television station fiscal matters are private and should be kept private’ is plainly inaccurate and is contrary to existing laws that have been on the books for decades,” added McGehee.  “The argument that the change away from paper is burdensome is ridiculous on its face.”

Television stations already use computers for virtually every task, yet they want to keep the political file exclusively on paper.  They want employees to continue to print computer files, place a copy in a filing cabinet, accompany anyone who wants to look at the file and accommodate copying requests.  It defies reason to say this 20th Century process is less burdensome than the few keystrokes it would take to upload the data already in the station’s computers.

Today, the Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) seeking an investigation of Rep. Edolphus Towns concerning allegations that he illegally converted campaign funds to personal use.  Media reports have indicated that the Congressman’s wife, Gwen Towns, regularly uses a vehicle financed by the campaign for a variety of noncampaign-related personal uses, including her daily commute to and from her place of employment.

“The regular personal use of a campaign-financed car by the Congressman’s wife alleged in media reports would constitute a clear violation of campaign finance laws related to personal use of campaign funds unless the Towns’ campaign was fully reimbursed,” said J. Gerald Hebert, Campaign Legal Center Executive Director.  “We found no evidence in FEC disclosure reports filed by the Towns campaign that it was ever reimbursed for any personal use of the vehicle by Mr. or Mrs. Towns.”

Under federal law, campaign contributions are deemed “converted to personal use” if such funds are “used to fulfill any commitment, obligation or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office.”  The law also expressly defines any “noncampaign-related automobile expense” as a personal use of campaign funds.

FEC reports indicate that Representative Towns’ campaign has leased an Infiniti for at least 12 months at a cost of more than $600 per month and published reports have indicated that the vehicle has been used exclusively or primarily by the Congressman’s wife Gwen Towns for noncampaign-related personal activities.

The complaint filed by the Legal Center called for an immediate investigation and urged the FEC to impose appropriate sanctions for any and all violations.

To read the complaint, click here.

Yesterday, Campaign Legal Center President Trevor Potter delivered an address on the state of campaign finance to the 89^th Annual Meeting of American Law Institute at the Mayflower Hotel in Washington.  The speech described our current campaign finance system as one where “[t]he laws written by Congress have been so rearranged by various Court decisions that they resemble the pieces of a jig-saw puzzle, laid out randomly on a table, with important pieces missing.”

Potter traced the evolution of the current campaign finance crisis and discussed an agenda to escape it if the political willpower can be mustered. As with so many of his speeches in the last year, this one was preceded by video clips of Potter and his most recognizable client – Stephen Colbert.

The full text of the speech follows below:

Trevor Potter’s Address to the Annual Meeting of the American Law Institute

May 23, 2012

I am often asked how, after 25 years as an election lawyer, service as an FEC Commissioner, and General Counsel to 2 presidential campaigns, did you end up as Stephen Colbert’s lawyer on late night TV.  The answer is “I was lucky…”

It just goes to show—90% of life is “just showing up”—and returning phone calls.

I was at my desk one day last spring and the Colbert staff called—“What is a PAC.  Would you be willing to explain it on the Show?”  And I’ve been doing it ever since…with the forbearance of my law partners at Caplin & Drysdale, although as one of them put it to me,  “For the first time in 30 years, my kids care what I do, because I work with Stephen Colbert’s lawyer!”

Stephen Colbert does have a knack for taking very complicated legal subjects and hours of staff discussions and research and distilling it into 4 ½ minutes of Q&A that captures the essence of the issue, and explains it in layman’s language in a humorous, captivating way.  What every Supreme Court advocate wishes for!

On one Show a shell corporation we had registered with the State of Delaware as “Delaware Shell Corporation” was turned into the Stephen Colbert 501(c)(4) with a pro forma 15 second board meeting in front of the studio audience. Afterwards, I had a call from a law professor at a prominent West Coast law school who said she wanted to thank me. “I have been trying to find ways to explain the role of incorporator to my students—now I can just show them the Colbert Report.”

But it is NOT the role of the incorporator that causes millions of idealistic younger Americans— and seen-it-all older ones—to watch the Colbert Report’s coverage of campaign finance in this Presidential election year.  Nor is it the riveting discussion of IRS filing procedures for Section 501(c)(4) organizations that won the Show a Peabody Award.

The Colbert Report coverage is so successful because it accurately describes a campaign finance world that seems too surreal to be true.  A system that claims to require disclosure of money spent to elect or defeat candidates, but in fact provides so many ways around that requirement as to make disclosure optional; a system that says that “independent expenditures” cannot be limited as a matter of Constitutional law because they cannot corrupt because they are “totally independent” of candidates and parties—when the daily news reports about these supposedly “independent” groups show that candidates raise money for them, candidates’ former employees run them, and candidates’ polling and advertising vendors advise them.  And the major donors to these “independent” groups are often also official fundraisers for the candidate.  Other major donors have private meetings with the candidates, or travel with them on campaign trips!

Some of the other realities of modern campaign finance are just as bad.  This year, for the first time since 1972, we have a Presidential election with no candidates financed by public funds in either the primary or the general elections.  Instead of receiving grants from the U.S. Treasury to campaign, we see a race by both sides to raise a billion dollars each from private donors.  They won’t make it, by the way, because so much of the money instead will be going into the SuperPACs and 501(c)(4)s and (c)(6)s allied with the parties and the candidates.

Those groups will raise and spend hundreds of millions of dollars, not just in the presidential race but in House and Senate races which present “opportunities” for the interests funding them…opportunities to change control of Congress by knocking off unsuspecting incumbents with last minute expenditures of large sums of money, often paid for by undisclosed sources.

And all of this will be done with unremittingly negative ads created by unaccountable media advisers for unaccountable “independent” “outside” groups.  Because if the candidates do not have to stand behind their advertising, and answer to the public for it, there is nothing to prevent every minute of every campaign ad being negative, because those ads are more effective—they do a better job of depressing the opponent’s vote.  The dirty secret is that voters may not like your candidate any better, but they grow disheartened about theirs, and stay home.

Incumbents have reacted to this new world by running faster and faster on their fund-raising treadmills.  Incumbent Senators have to raise hundreds of thousands of dollars a month—every month of their six-year terms.

I recently heard a presentation by the President of a respected centrist Washington foreign-policy think-tank.  He discussed the tense situation in the South China Sea, the pirates in the Straights of Malacca, and the geo-political challenges of the melting polar ice cap.  Then he identified what he said was “the greatest threat to the United States today”—“the campaign finance system.”  I froze, wondering if I had heard correctly.  He explained that there were two reasons for this.  The first was that campaign money had become the largest corrupting factor in Washington policy making today.  And the second was the TIME that this fundraising took.  Members are only in Washington two and a half days a week—from Tuesday afternoon until Thursday night.  While here they spend most free moments in party-provided phone booths dialing for dollars—or at lunch and cocktail and dinner fundraising receptions.  On weekends they are often on a coast –or a mountain top—far from home, at fundraising events.  The result, said the think-tank president, is that it is the staff who are trying to make policy.  As he put it, “I was staff, and I have great respect for staff, but that job belongs to the elected Members, not to staff!”

Harvard Law Professor Larry Lessig has written a new book called Republic, Lost, in which he argues that our campaign finance system is destroying our ability to have a functioning government.  He does not claim that Members of Congress are venal and corrupt—to the contrary he says that they are largely good people, stuck in a system that focuses overwhelmingly on the need to raise money from interests who have it and contribute to influence legislation.  To give you a sense of his book—which I commend to you—a couple of the Chapters are called:

WHAT SO DAMN MUCH MONEY DOES

HOW SO DAMN MUCH MONEY DEFEATS THE LEFT

HOW SO DAMN MUCH MONEY DEFEATS THE RIGHT

As you may have heard, Jack Abramoff is now back in Washington, out of prison and having seen the light.  “Ban contributions from lobbyists”, he says, “and from the executives of companies that employ them.”  Not because lobbying is bad, but because in his own personal experience the involvement of lobbyists in campaign fundraising can dominate the legislative process.

All of this is observed—overseen would be the wrong word, because it would suggest some activity—by a Federal Election Commission riven with partisan and philosophical gridlock.  It is so bad that the Commission did not even have the necessary majority vote—four out of six Commissioners—to put out a Notice of Proposed Rulemaking after Citizens United and seek comment on whether it should change the regulations just invalidated by the Supreme Court.  It is an agency so deadlocked that on several occasions it has not been able to agree to appeal when its own regulations were declared “contrary to law” by federal district courts.

Meanwhile, Congress itself is gridlocked over most of these issues—when they are here, and working, rather than fundraising.  Disclosure, which used to be like “Mom and Apple Pie”—everyone was for it…is suddenly one of the most partisan issues in Washington.  For two straight Congresses, there is not a single Republican Senator supporting the DISCLOSE Act, which would give us the disclosure the Supreme Court said in Citizens United that we already had!  And the Republican response is that the Act is written to avoid requiring the unions to disclose the individual names of their millions of small dues-paying members.  That is true, but is it a relevant criticism?  Would they really support disclosing the names of millions of individual small donors to the NRA as well?

How did we get here? It is often forgotten, but for long periods of the previous Century, we had a pretty well functioning campaign finance system.  In 1904 President Roosevelt called for public funding of the political parties, and a ban on corporate contributions.  In 1907 he got one of those with the passage of the Tillman Act, which banned corporate contributions in federal elections, Congress extended contribution and expenditure restrictions to unions in 1947, and rewrote the laws following Watergate to ensure disclosure, set new individual contribution limits to candidates and parties, and create for the first time a public funding system for presidential elections and establish the FEC as an enforcement and disclosure agency.

Then in 2002, Congress passed McCain-Feingold, which essentially was designed to bring the system back into compliance with the Watergate-era reforms.  I know everyone does not agree, but I believe the McCain-Feingold law largely worked in the 2006 and 2008 elections—the parties and candidates raised more money than before, much in small contributions, and there were comparatively few attempted end-runs around the system, and relatively little undisclosed money.

All of that is changed now. Obviously not everything I have described is the result of Citizens United—the Congressional fundraising race has been getting worse for years.  But much of what we face today is the result—intended or otherwise—of that 2010 decision.

The Court made three fundamental mistakes in Citizens United.  First, it declared that while corporate spending in all elections—state and local as well as federal—must now be allowed, that would be accompanied by complete disclosure of all campaign spending.   Shareholders would know how their corporations are spending their funds, and voters would know who is paying for the election ads they are watching.  As we have seen, this has not proved to be the case—largely because the Supreme Court majority was reading the statute, rather than the more obscure FEC regulations which “interpreted” the statutory disclosure mandate out of existence.

Then, the Court assumed that “independent expenditures” would be “totally independent” of candidates and parties—which is how the Supreme Court defined independent expenditures in Buckley v. Valeo back in 1976, and why it found them to be free of any possibility of corruption.  As we have learned this year, that is a nice theory—with very little grounding in political reality, or in FEC regulations.  Instead the FEC has actually deadlocked on an advisory opinion asking about the possibility of making coordinated non-coordinated election communications.

Finally, the Court erred, most seriously of all, in announcing that the only corruption that the government can attempt to avoid is “quid pro quo” corruption—explicitly trading votes or similar official actions for money—exactly the sort of personal venality that rarely exists.  Justice Kennedy wrote: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy…Ingratiation and access, in any event, are not corruption.”  The Court seems to be saying that the Congress, and state legislators cannot address systemic corruption—what Prof. Lessig calls “type two” corruption-- the effect on the legislative process of the massive amounts of money being raised and spent, and the sale of special access to large donors, and the threats of massive “independent” expenditures if the legislators don’t vote as they are asked.  This, the Court seems to say, is all protected by the First Amendment—even if it is this sort of systemic corruption which most worried the founders when they sought to make Congress independent of other interests, “accountable only to the people.”

I do not pretend this is a simple constitutional issue, precisely because this is where two important Constitutional values meet, sometimes head on: the First Amendment, the quintessential individual right to free speech,  which we know about, and the important collective right to  a functioning, representational government, which we sometimes forget is the whole purpose of the Constitution.  But the Supreme Court has until now recognized repeatedly that the legitimacy of government is threatened at its core when it is corrupt, or even appears to most citizens to have a serious conflict of interest.

Since the Supreme Court’s decision in Buckley, which upheld most of the Watergate campaign finance reforms (with the important exception of “expenditures totally independent of a candidate or party”), the Supreme Court’s jurisprudence in campaign finance has changed.  The Court has moved from largely upholding regulation of campaign fundraising and corporate spending, to striking it down.  The 6-3 Austin decision acknowledging the corrupting potential of corporate money in elections was succeeded by the Supreme Court’s 5-4 decision in McConnell v. FEC upholding the McCain-Feingold restrictions and then shortly after by the Court’s 5-4 decision the other way in Citizens Unitedstriking down McCain-Feingold’s regulation of corporate and labor money in elections.

One noteworthy aspect of Citizens United is that it was decided by a Court which, for the first time in U.S. history, has not a single Member who has held elective office.  Justice O’Connor, the key vote to uphold McCain-Feingold, had run for office, raised campaign funds, served in the Arizona legislature as majority leader, and understood how dangerous and complicated the intersection of campaign money and legislation can be.  She was willing to defer to Congress, after it spent years discussing the potential and appearance of corruption in the fundraising done by members and party committees.  She deferred to the considered judgment of Congress in dealing with what it identified as a serious problem, on the theory that they knew more than the Supreme Court about corruption in the legislative process.

Other Justices show no such deference—in fact, they appear to think any regulation of campaign finance by Congress is suspect, that it must be nothing more than incumbent protections.  Having watched firsthand as insurgents and rank and file members of Congress passed McCain-Feingold with considerable public support and over the bitter opposition of insiders of both parties,—I did not regard the legislation that way.

But more importantly, I think the clear propensity of this Court to brush aside Congress’ judgment that there is a danger of corruption of the legislative process because of election spending creates a serious institutional barrier to Congress’ ability to safeguard the legislative process.

In the last two years, the Supreme Court has allowed unlimited corporate and labor spending in all elections in the U.S., overturning 60 year old federal laws and some older laws in 26 states.  It has declared unconstitutional as a restriction on speech the Arizona public financing system, because it provided additional public funds for more speech to candidates participating in the public funding system, triggered if their opponents spent that amount. The DC Circuit has declared unconstitutional the longstanding $5,000 contribution limit to independent-expenditure only political action committees, which decision has resulted in the creation of what we know as SuperPACs—like Stephen Colbert’s Americans for a Better Tomorrow, Tomorrow.

All of this has been done in the name of the First Amendment, which as Americans, and as lawyers, we revere.  But one can be a First Amendment absolutist without being absolutely sure what it requires and what is prohibits.  Well-meaning and wise people can differ on these questions, which I believe argues for some deference to Congress when it seeks to limit corrupting activity, as they are the ones who experience the campaign finance system on a daily basis.

The courts themselves have been of several minds about what the First Amendment requires, and remain closely divided.  The Supreme Court’s current doctrine is that spending money for an ad that elects a candidate is not corrupting, but giving the candidate the money to run the same ad is.  The Court has held that Congress could prohibit corporate and labor expenditures in elections—until it held that it couldn’t.  The Supreme Court in Citizens United said that the government had no business limiting anyone’s speech, and that we are better off hearing ALL voices, no matter their source.  Then it summarily affirmed the decision of a three-judge district court in Bluman v. FEC that held that the government could prohibit foreigners legally residing and working in the U.S. from speaking in U.S. elections.  The three-judge court explained that the difference was that foreigners were traditionally outside of participation in the U.S. political system, even if they lived here.  Of course, many people thought that was true of corporations too, until Citizens United.

My point is not that the Court was right in one case or wrong in another, but rather, that these are close and complicated issues of Constitutional interpretation and that the Court slashing its way through campaign finance statutes with a machete seriously threatens  the stability of our democracy.

I am occasionally asked questions by reporters and foreign visitors about our campaign finance system and I have taken to responding that there is now no such a “system.”  The laws written by Congress have been so rearranged by various Court decisions that they resemble the pieces of a jig-saw puzzle, laid out randomly on a table, with important pieces missing.

On occasion, it suits the partisan interests of one side or another to claim that the pieces cannot be put back together even when they can—that a constitutional barrier exists when it does not—because that argument sounds better than acknowledging the partisan reality.

One example of this is the current debate about disclosure.  There are certainly good reasons for some of the organizations running political ads this year to think that they will raise more money if they do not have to disclose their donors.  American Crossroads started as an organization that disclosed its contributors—but it did not have as many as expected. Then, they created a 501( c)(4) that did not disclose its donor’s names—and it suddenly had a whole lot more.

Corporations may have good reason to seek to keep political expenditures secret—secret from their shareholders and customers and employees, at least.  The example of Target, which faced consumer boycotts, shareholder resolutions, and angry employees when it contributed to a committee supporting a controversial candidate for Governor in its home state of Minnesota in 2010, is often cited as what other corporations hope to avoid.

However, in addition to these practical arguments, opponents of disclosure attempt to wrap their position in the Constitution.  They claim that requiring the disclosure of funders of political ads would “undermine” Citizens United.  They also claim that the secrecy of corporate funding is protected by the 1950s civil rights case NAACP vs. Alabama.

The Citizens United claim is particularly far-fetched.  One under-reported aspect of the Citizens United decision is that the Court upheld the broad disclosure requirements of McCain-Feingold 8-1: every member of the Court except Justice Thomas agreed that “the public has an interest in knowing who is speaking about a candidate before an election.”

The eight Justice majority for this portion of Justice Kennedy’s Opinion went on to praise disclosure of the sources of political speech in robust terms:

“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

It is hard to think of a more ringing endorsement from the Court of mandated disclosure of the funding of political spending!

The NAACP comparison rests on a similarly flawed foundation: the harm faced by members of a small and highly unpopular civil rights organization in Alabama in the 1950s was severe physical violence—even death. Groups that allege a fear of “reprisals” today are of a different nature entirely, as is the nature of the alleged reprisal.  The NRA and Chamber of Commerce are hardly small and vulnerable unpopular minority groups.  Nor is the organization in California that led the campaign against same sex marriage in that state to a 52 percent popular vote victory.  And the harm alleged is not death or serious physical danger, but insults and consumer boycotts (itself protected first amendment activity).

As Justice Scalia wrote in Doe v. Reed, a case about disclosure of ballot signatures:

“There are laws against threats and intimidation: and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.  Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which…campaigns anonymously…[t]his does not resemble the Home of the Brave.”

So, where do we go from here, on disclosure or any other campaign finance issue??

We have campaign finance practices that both parties—and presidential candidates—say they dislike.  I would like to think that after this election the problems with the status quo will be overwhelmingly clear to both sides, and a consensus on a new way forward will emerge.  Unfortunately, at the moment only the first part of that sentence seems accurate—the problems are clear, but the ability to reach a consensus is not.

There is talk of a constitutional amendment. Not only would such an amendment be hard to draft, putting the interpretation right back into the hands of the Courts, but I think talk of an amendment encourages avoidance of the hard work that should be done to solve these problems. For there are legislative solutions that would be both effective, and constitutional—they just take legislative willpower. Such a reform agenda could include:

• Defining independent expenditures so that they are truly independent-of the candidates, their agents, previous staff, close family members, current vendors
• Requiring disclosure of the sources of funding of all election ads, no matter who runs them
• Reform of the FEC, so that it becomes an effective, independent, enforcement agency
• Restrictions on contributions, and fundraising, by lobbyists
• Lobbying regulation reform, as proposed by the ABA, to ensure that people who lobby or run lobbying campaigns, become registered lobbyists
• An effective public funding system, so that candidates for President and the Congress have the resources needed to campaign for office, and to run for re-election, without spending every moment of their working day thinking about fundraising rather than doing the work they were elected to do

These are not easy solutions, and I do not claim they are the only ones, or even necessarily the right ones. But the time has come that we—all of us—need to dedicate ourselves to acknowledging the problems with our campaign finance practices—and what they are doing to our governmental system—and resolve to correct them.