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We asked our old friend Ann Ravel — former Santa Clara County Counsel, former chair of California’s Fair Political Practices Commission, now chair of the Federal Election Commission — to explain why the FEC is so disfunctional, hoping she would call out the Republican commissioners for their partisan obstructionism. Here, in a Calbuzz exclusive, Ravel spells out the issues but is too diplomatic to slash and burn.

By Ann Ravel
Special to Calbuzz

I am the Chair of the Federal Election Commission for a few more weeks, before the yearly title rotates to another commissioner in January, as required by law.  My year as Chair has taught me even more clearly just how dysfunctional the Commission is, and how our dysfunction is harming the democratic process in this country.

It is the FEC’s responsibility to ensure the integrity and fairness of elections by issuing regulations to clarify campaign finance laws, by providing advice about how to comply with those laws, and by enforcing the laws when they are violated.  To maintain public trust in our representative democracy, the Commission must perform these vital functions.

But the Commission, which consists of 6 members, no more than 3 of which may be affiliated with one political party, has been unable to do any of these things when it comes to the significant election spending issues facing this country today.

Some of my colleagues seek to excuse this failure by arguing that the Commission was intended to deadlock 3-3; a majority vote of 4 is required to take any significant action.  In effect they claim that the Commission they are charged with leading was in fact intended to never do anything.  This is absurd.

Spawn of Watergate Congress created the FEC in response to Watergate, specifically because that scandal demonstrated the need for an independent enforcement agency that would ensure the effective disclosure of  political campaign funding and spending. Congress designed the bipartisan structure of the Commission to prevent partisan targeting, not to paralyze the agency. But when three Commissioners repeatedly and consistently vote against enforcing the law, paralysis is the result.

My colleagues frequently quote Chief Justice John Roberts’ statement that “the tie goes to the speaker” when the First Amendment is implicated, as justification for not enforcing the law in anything other than the most obvious and minor transgressions.  But while the courts have invalidated portions of the campaign finance legal regime created after Watergate, many core principles of campaign finance law have been specifically upheld but not enforced by the Commission.

In Citizens United v. FEC, for example, the Court reasoned that independent expenditures by corporations do not give rise to corruption or the appearance of corruption when they are independent of candidates and their committees. If they are not independent, but instead coordinated with candidates, the law clearly continues to prohibit such spending.

The FEC rules describing when political spending is coordinated, however, are grossly outdated.  The most recent revisions to those rules, finalized over five years ago, were drafted in response to a 2008 court decision, not  in response to Citizens United and the subsequent Speechnow.org v. FEC case that created super PACs. The Commission has never issued coordination rules that specifically address the growing role of super PACs and other outside spending groups in elections.  There has also never been an investigation of a super PAC coordination case at the FEC, in large part because of the antiquated rules.

GOP Intransigence Despite my request to the Republican member of the FEC’s regulations committee, Commissioner Caroline Hunter, there was unwillingness to even consider coordination rules that would address the new realities of super PAC spending. My colleague Commissioner Ellen Weintraub and I thus have made public a Coordination Rulemaking Proposal that would be a first step in addressing the new realities of coordination, but there is little hope that the Commission will have the votes even to permit the public to comment on this important issue.

Rather than writing new rules clearly prohibiting the new forms of coordinated political spending that have developed post-Citizens United, the Commission has instead gone in the opposite direction and permitted even more coordination between candidates and outside groups.   In a recent advisory opinion, the Commission allowed agents of candidates (for example, a member of Congress’ chief of staff) to also raise money for an “independent” super PAC that only raises money for that same candidate.  That opinion also allows a candidate to speak at a fundraising “event” for a super PAC that is raising money for that candidate, even if there are only a couple of attendees at the “event.”

Decisions like these, coupled with our failure to enforce even the regulations that do exist, make it abundantly clear that the FEC will not be looking at whether so-called “independent” spending by outside groups is in fact independent from candidates, even though that expectation formed the basis of the Court’s decision in Citizens United.

The Supreme Court in Citizens United also strongly endorsed the value and legitimacy of rules requiring disclosure of political spending by outside groups: “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.”  Numerous courts have also upheld the law, and related FEC guidance, requiring groups whose major purpose is to influence elections to register with the Commission as political committees and to disclose their donors and spending.

Unfettered Dark Money We know that at this point in the 2016 campaign cycle, 10 times more “dark money” has been spent than at this same point in the 2012 election cycle. Even so, the FEC has not been able to muster the four  votes needed to require disclosure by those “dark money” groups that have election spending as their major purpose.

To take just one recent example, the Commission was unable to enforce the political committee rules in the Commission on Hope, Growth & Opportunity (“CHGO”) enforcement case.  CHGO had documents stating that its goal was to influence elections, and it spent a clear majority—millions of dollars—of its funds running ads supporting some candidates and opposing others.*  Yet the Republican bloc went to great lengths to avoid enforcing the law against CHGO, just as they have with many other organizations.

Even Justice Kennedy, who wrote the majority opinion in Citizen United, is concerned that the disclosure system isn’t working the way it should be.  In recent remarks at HarvardLawSchool, he said “In my own view, what happens with money in politics is not good.”  Disclosure of who is financing elections is an answer, but he admitted “that’s not working the way it should.”

I agree with Justice Kennedy.  But it’s not just the disclosure system that’s the problem—it is also the FEC that is not working the way it should.

* Statement of Reasons of Commissioners Ravel and Weintraub in MUR 6391 and 6471 (Commission on Hope, Growth & Opportunity), dated November 5, 2015, available at http://eqs.fec.gov/eqsdocsMUR/15044381181.pdf.