Three Republican appointees to the Federal Election Commission may be as responsible as anyone for the lack of transparency of post-Citizens United political spending.
Two years ago today, when the Supreme Court issued its Citizens United ruling, one bright spot was that the majority explicitly endorsed the constitutionality and necessity of disclosure rules that inform voters who paid for the political ads they see. “Disclosure is the less-restrictive alternative to more comprehensive speech regulations,” they affirmed.
Federal statutes require that for all significant “independent expenditures” and “electioneering communications” — the two major classifications for political expenditures made by outside groups unaffiliated with political candidates — the names and addresses of large donors must be identified.
But the FEC, through its rulemaking process, gave these groups a loophole. They said that the identities of donors behind the outside spending must be identified, but only if the money was specifically earmarked for the political expenditure. This means that a secretive right-wing group like the Karl Rove-linked Crossroads GPS need only identify the funders who pay for their attack ads if those donors explicitly say the money should be used for attack ads. Few do.
Last month the six FEC commissioners killed — on a 3-3 vote — a motion to begin consideration of Van Hollen’s suggestions. By law, the agency may have only three members of any political party. By tradition, the president chooses three commissioners and the other party’s Senate leader chooses three. The three Republican appointees — Commissioners Caroline Hunter, Donald McGahn II and Matthew Petersen — were the three “no” votes. The same trio also made headlines last month when they took the view that even coordination between Super PACs and candidates might not qualify as coordination between Super PACs and candidates.
The lawsuit is still pending.
Because of these loopholes, virtually none of the funders behind the Super PAC attack ads in Iowa, New Hampshire, and South Carolina will be disclosed until well after the voters there have cast their ballots. And the funders behind 501(c)(4) attack ads may never be known.
So while it was the Supreme Court’s majority that opened the floodgates for corporate money in our elections, it is the deadlocked FEC that is keeping voters from even knowing where that money comes from.