Our federal campaign finance laws ensure transparency about who’s spending money to influence elections and are an essential tool for holding candidates accountable for the money they raise and spend in pursuit of public office.
These laws are also crucial for ensuring our system is fair and representative and protecting every American’s right to meaningfully participate in the political process. But laws can only advance these important goals if they are fairly enforced and implemented.
That’s why the role of the Federal Election Commission (FEC) is so important: It’s responsible for implementing and enforcing the campaign finance laws that protect voters’ rights and safeguard the integrity of our democratic process. For most of its fifty-year history, the FEC had done its job pretty well.
But in recent years, the agency has frequently fallen short of the mark, becoming mired in gridlock on major questions and failing to require accountability. Far too often, half of the agency’s six commissioners vote against even investigating credible allegations of lawbreaking, overriding the recommendations of the nonpartisan career staff in the FEC’s Office of General Counsel.
Worse still, they often cloak their substantive legal analyses with labels of “prosecutorial discretion” to effectively insulate the agency’s flawed legal conclusions from review by the federal courts.
Unfortunately, a congressional oversight hearing on September 20, 2023—the first such oversight hearing held in over a decade—was largely a missed opportunity for Congress to hold the FEC accountable for abdicating its regulatory responsibility.
At the hearing, commissioners emphasized the agency’s supposed bipartisan agreement in over 90% of roughly 500 recent enforcement matters. But that statistic is grossly misleading—padded with easy votes on straightforward allegations and directing attention away from the fact that the agency almost never investigates major violations involving, e.g., coordination or secret spending, also called “dark money.”
Meanwhile, the FEC said virtually nothing about some of the agency’s most spectacular failings: ignoring coordination between super PACs, candidates, and political parties, allowing dark money in elections to flourish, giving politicians the green light to use donors’ funds for their personal expenses, and failing to prevent foreign money from interfering in our electoral process.
Super PAC Coordination
Since the Supreme Court’s 2010 decision in Citizens United v. FEC, corporations and wealthy individuals have been allowed to spend unlimited sums of money on independent electoral advocacy that is not coordinated with any candidate or political party.
Yet in the thirteen years since Citizens United, the FEC has apparently never found anyone in violation of these requirements, even as super PACs have often been the opposite of independent, and increasingly supply campaign services far beyond electoral advocacy.
It has become common practice for candidates to be supported by a “single-candidate” super PAC whose sole purpose is to raise and spend special interest money on the candidate’s behalf, and some of the biggest super PACs—like “Senate Majority PAC” and “Congressional Leadership Fund”—are under the clear control of party leaders in Congress.
Far from remaining independent, super PACs look for and receive instructions about how best to help candidates through an illegal tactic known as “redboxing,” and they sometimes procure strategy documents, polling, canvassing and more to benefit campaigns, saving them money.
By failing to prevent super PACs from becoming vehicles for special interest money to directly underwrite candidates, the FEC has allowed corporations and billionaires to control the political process while drowning out the voices of ordinary Americans in our democracy.
Dark Money
At the same time, the FEC has broadly failed to rein in secret spending on elections. Special interests that seek to avoid public scrutiny of their election spending do so by funneling money to super PACs through straw donors—often a shell company that is formed or used solely to make a political contribution while concealing the true source providing the funds—or through 501(c) groups, which do not disclose their donors but can spend millions on election influence.
The FEC has shown virtually no willingness to regulate or penalize groups that spend vast sums of money trying to elect candidates without registering as a political committee or reporting their donors, as the law requires.
The upshot is that dark money in elections continues to fundamentally undermine transparency, hurting voters’ ability to meaningfully evaluate candidates based on complete disclosure of who’s spending to support those candidates and influence their vote.
Personal Use of Donor Funds
Campaign finance laws prohibit using donor funds to pay for personal expenses, but the FEC has not only failed stop this abuse from happening; it has further opened the door for such abuse.
That’s because the agency has taken a blinkered view of the “personal use” prohibition and ruled that it doesn’t apply to leadership PACs, a type of political committee established by a federal candidate or officeholder to support other candidates, effectively burying its head in the sand on the well-documented and pernicious practice of candidates using leadership PAC funds to pay for personal expenses.
Foreign Money
The FEC has even failed to stem foreign money in our elections, an issue it proclaimed, in 2016, would be an enforcement priority in light of widespread evidence that foreign governments were attempting to influence our elections.
To the extent that foreign money was even mentioned at the oversight hearing, Commissioner Sean Cooksey suggested, troublingly, that a foreign national could legally funnel money into elections through a 501(c)(4) group.
Looking Ahead: More Action, Less Insulation
Casting a shadow across all these areas is the FEC’s frequent exploitation of judicial decisions that largely exempt an agency’s exercise of “prosecutorial discretion” from judicial review, as a means of insulating their flawed, substantive legal analyses under the false label of “discretion.”
The FEC’s failure to investigate and enforce the law on important matters over the past decade shows that it needs oversight, not insulation. The absence of meaningful consequences for those that violate campaign finance laws has fostered a culture of impunity in which candidates and outside spending groups alike are openly transgressing legal lines—knowing there is little chance they will be held accountable. That needs to change, and the FEC needs to start doing its job.
The FEC should start right away by taking assertive action on a new threat to our elections: using artificial intelligence (AI) to deceive or manipulate voters. Reports indicate that candidates and PACs are already using AI in their ads, and some foreign governments are starting to use AI in voter disinformation campaigns.
A recent rulemaking petition, which is currently open for public comment, asks the FEC to clarify that its longstanding prohibition on fraudulent manipulation applies to AI. The FEC should take this important first step, but more is needed—with leadership and oversight from Congress.
A Senate Rules Committee hearing this week should provide greater insights on new laws that Congress could pass to regulate AI in elections. But these laws will only be effective if they are rigorously implemented; whatever actions Congress takes, the FEC will have to redouble its investigative and enforcement efforts. That’s the only way to create real accountability, protect the rights of voters, and maintain the integrity of the democratic process.