When the FEC Allows Special Interest Loopholes, the Court Must Step In

Commissioners sit behind a long high desk and speak with people seated in chairs in front of them who have their backs to the camera
A public meeting of the Federal Election Commission in Washington, D.C. on February 14, 2023. Photo by Casey Atkins/Campaign Legal Center

It’s apparent that there’s a real crisis of faith in our democracy. Our elected officials are not as responsive to the will of the people as they should be, largely due to wealthy special interests spending big money to influence our vote and our government to rig the system in their favor.

The Federal Election Campaign Act (FECA) was designed to increase transparency and limit the risk of corruption so that voters can make informed decisions and elected officials can actually represent the will of the voters who elected them rather than do the bidding of special interests. FECA does so, in part, by restricting the sources and amounts of contributions to federal candidates and requiring candidates to file periodic financial disclosure reports that inform the electorate of who is spending money to influence their votes. 

At every turn, however, politicians and those interested in influencing them have exploited loopholes to evade FECA’s fundraising limitations and disclosure requirements. Before FECA was amended by the Bipartisan Campaign Reform Act (BCRA, also known as the McCain-Feingold Act), candidates would avoid the restrictions of federal campaign finance law by using money raised by entities subject only to state laws — which are often far more lax than federal law.  

After BCRA expressly prohibited that workaround, candidates and campaigns have found new ways to avoid the act’s disclosure requirements and contribution limitations. For instance, candidates and their campaigns and committees have invented backdoor ways to get super PACs — which are entities that are allowed to raise and spend unlimited amounts of money so long as they do so independently — to spend money in specific ways that help them get elected. Another way candidates and campaigns try to avoid these limitations is to pretend like they have not yet decided to become a candidate while helping entities raise massive amounts of money that the entity then uses to support the candidate once they’ve declared their intent to run for office.  

Though creative, these workarounds are unlawful. FECA specifically prohibits federal candidates from raising or spending funds that are not subject to federal campaign finance laws, or so-called “soft money,” including funds raised or spent by an entity that the candidate “established, financed, maintained, or controlled.” FECA also prohibits candidates from deliberately delaying announcing their candidacy despite having decided to run for office and soliciting, on a super PAC’s behalf, corporate funds or individual contributions of over $5,000 per year.  

The Federal Election Commission (FEC) is tasked with enforcing these laws and curbing this unlawful activity. Unfortunately, the FEC has too often refused to act in the face of blatant violations. Lately, the FEC has attempted to shield its refusal to act from scrutiny by invoking the term “prosecutorial discretion” in the statement of reasons for dismissal, thereby arguing that the courts cannot review the decision. This tactic undercuts campaign finance law and undermines democracy in the process.  

This is exactly what has happened in a case that Campaign Legal Center Action is litigating on behalf of End Citizens United (ECU) regarding an FEC complaint ECU filed in April 2018 against then-Governor of Florida, Rick Scott, and his nascent Senate campaign. Scott illegally delayed declaring his candidacy with the FEC to avoid triggering federal requirements, while co-opting New Republican – a super PAC – to raise millions of dollars outside the legal limitations, which would later be spent supporting his campaign. CLC argued the case in the D.C. Circuit in April, urging the Court to correct the legal errors the FEC relied upon in refusing to enforce the law.  

Whatever the outcome of this case, it is clear that in order to reduce political corruption and ensure elected officials are responsive to the voters, we need real transparency about who is spending big money on elections. 

Allison is a Legal Fellow at CLC.