This Summer, the Agency Charged With Protecting Transparency Is Undermining It

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The FEC logo in color above a row of white filing cabinets
The public records room of the Federal Election Commission in Washington, D.C. Photo by Casey Atkins/Campaign Legal Center

Voters have a right to know who is contributing to the campaigns, political parties, and other political committees that seek to influence their vote.  

Knowing who political donors are is crucial for voters to meaningfully cast their ballot because it allows them to gauge whose policy interests candidates will likely serve once in office and to understand who is funding the advertisements they see.

This information is necessary to assess the motives and credibility of those advertisements, which often come from groups with generic or misleading names — e.g., Americans for Greatness — that don’t provide much, if any, insight into the group’s goals.

The Federal Election Commission (FEC) — the sole agency tasked with interpreting and enforcing federal campaign finance laws — is responsible for fulfilling these important transparency goals. It does so by collecting and publishing political committees’ disclosure reports and ensuring that these reports disclose all the information required by law — including specific information about political donors.  

Political committees must report the name, address, occupation, and employer of each contributor who gives more than $200 to any candidate or committee.

There is no exception to this requirement written into the campaign finance laws, and federal courts have consistently reaffirmed the importance of disclosure as a safeguard against corruption and a vital tool for voters to engage in the democratic process.

Despite the FEC’s clear mandate to preserve transparency in our elections, it considered a jarring proposal at its May 16, 2024, public meeting to establish a formal pathway for individuals and political committees to obtain an exemption from publicly reporting mandatory information on contributors.  

The idea of a reporting exemption is not new. The Supreme Court recognized a narrow exemption in its 1976 campaign finance case, Buckley v. Valeo.

If a donor can show a “reasonable probability” that they will face threats, harassment, or reprisals from the government or private parties because of a political contribution, and the public interest in the information to be withheld is “insubstantial,” then the donor does not need to be disclosed.

But Buckley and subsequent cases have emphasized that this court-created exemption is extremely limited, requiring “specific evidence” of prior threats or harassment or a pattern of hostility, and the courts have also only granted the exemption to supporters of minor parties and candidates who had little chance of winning an election.

Applying this careful court-created balancing test, the FEC has used its advisory opinion process to exempt the Socialist Workers Party from disclosing its donors during the Cold War, when there was voluminous evidence that party members faced systemic violence, economic loss, and even FBI and police harassment. More recently, the FEC has also allowed political committees to omit the addresses of contributors who have been victims of domestic violence.  

No one should ever face threats, harassment, or reprisals for standing up for their beliefs or associating with a group of like-minded individuals, and these groups and individuals faced very real dangers if people found their identifying information on campaign finance reports.

But because the FEC’s proposed directive did not adhere to the Buckley balancing test — including reducing the evidentiary showing a contributor would need to make and failing to balance the contributor’s interest with the public’s interest in disclosure — it risked allowing the exemption to swallow the rule, doing serious and lasting damage to electoral transparency in the process.

Campaign Legal Center (CLC) filed a public comment pointing out these and other significant flaws with the proposal, which the FEC, in an evenly divided vote, fortunately declined to adopt.

Yet the FEC also voted to direct its General Counsel’s Office to draft, within 75 days, a proposed regulation — a formal legal rule that has more weight than a policy or directive — establishing a mechanism for individuals and political committees to seek a reporting exemption.  

That 75-day window closes at the end of July, and the FEC may vote on whether to publish the draft regulation as soon as its scheduled public meeting on August 15, 2024. If the FEC moves forward with this process, the draft regulation will be available for public comments for at least 90 days after it is published.

Any rule that echoes the proposed directive and fails to protect transparency would be a devastating blow to our elections and voters’ right to know who is spending money to influence their vote.

With proposals boosting donor secrecy being a focus of FEC decision making this summer, CLC is ready to fight for voters’ rights, and we would urge others to voice their opposition to a rule that would almost certainly be used by those ideologically opposed to transparency to try and hide the election spending of wealthy special interests like billionaires and big corporations.  

Voters have a right to safely and knowledgably participate in elections, and the FEC must keep those interests in mind.

 

This blog is authored by CLC Legal Intern Savannah Jelks.