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Campaign finance watchdog raises alarm about recent FEC super PAC decisions • Ohio Capital Journal [1]
['Nick Evans', 'Susan Tebben', 'Marty Schladen', 'More From Author', '- July', '.Wp-Block-Co-Authors-Plus-Coauthors.Is-Layout-Flow', 'Class', 'Wp-Block-Co-Authors-Plus', 'Display Inline', '.Wp-Block-Co-Authors-Plus-Avatar']
Date: 2024-07-25
Last week, candidates around the country filed reports with the Federal Elections Commission detailing what they raised spent and borrowed. But some campaign finance experts argue the panel itself is fundamentally broken and it’s taking a wrecking ball to campaign spending rules.
For years, the six-member board moved at a glacial pace and often deadlocked when it came to enforcement decisions. But more recently, a majority of commissioners have begun issuing decisions that consistently roll back political spending restrictions.
“These are binding, durable decisions that will long outlast the current period,” Campaign Legal Center Executive Director Adav Noti explained. Before taking the helm at the voter access organization, Noti served in the office of General Counsel at the FEC. He spoke during a CLC event warning about recent decisions from the commission.
While a tie vote among FEC commissioners puts a case to bed, it doesn’t establish a precedent for future cases. With four votes, however, those decisions have the force of law.
“And that is very different from what we had in the era of deadlock,” Noti said, “where nothing was getting accomplished, but it also wasn’t prospectively binding.”
New direction
Super PACs can raise and spend an unlimited amount of funds, and they can explicitly advocate for or against a given candidate. But the organizations have two important restrictions — they can’t give directly to a candidate or coordinate with that candidate’s campaign.
But Noti explains two recent FEC decisions take steps to dismantle those guardrails. The first allows super PACs and campaigns to coordinate ground operations like door-to-door canvassing and get out the vote efforts.
Noti argued that decision allowed “presidential candidates to start essentially outsourcing their ground game to Super PACs, which can take unlimited money, corporate money, all forms of money that the candidates themselves cannot take, but to spend it in coordination.”
Another decision would make it easier for super PACs to coordinate text messaging campaigns.
Noti explained during the primary, Florida Gov. Ron DeSantis tested the boundaries of allowable coordination with his Never Back Down super PAC. The Trump campaign has begun laying the groundwork for a similar effort and Elon Musk has flirted with pouring $180 million into a pro-Trump super PAC.
“Candidates are supposed to be limited to taking about $5,000 from any person, and they’re getting 10s to 100s of millions of dollars from individual people and entities to support their campaigns,” Noti said. “It’s a huge risk to the system, and it’s one that’s entirely a creation of four FEC commissioners.”
Ideology rather than partisanship
Noti argued the driving force behind the FEC’s earlier gridlock and more recent permissiveness is less about partisanship than ideology. Instead of commissioners voting to protect people on their side of the aisle, he argued several of them simply opposed enforcing campaign finance law regardless of which party benefitted.
Speaking at the event, former commissioner Ann Ravel gave credence that conclusion. She served from 2013 to 2017 and recalled sensing almost immediately that there was little chance of making progress.
“I soon realized that half of the commissioners were ideologically opposed to the purpose of the agency and the laws that it was responsible to enforce, and they voted as a bloc,” Ravel explained.
In 2017, she published a report detailing the agency’s dysfunction. In her rendering the commissioners took a nihilistic view of the agency itself. She brought up a quote from former commissioner Don McGahn who went on to serve as Trump’s White House Counsel.
“He said publicly, I’m not enforcing the law as Congress passed it, I plead guilty as charged,” Ravel described. “That was a good representation of the others who were acting as a bloc and they all they claimed at the time that the agency was intended to do nothing.”
A surprising silver lining?
Noti and Ravel argued Congress would likely have to step in to make a real difference in how the FEC operates. Ravel brought up the DISCLOSE Act which has been bouncing around since 2010 without ever landing on the president’s desk. The measure would require greater transparency and reporting for large dollar donors. But Noti acknowledged the obvious — the chance of Congress action “in 2024 is basically zero, and in the short term is not very high.”
That leaves the courts, and in an unexpected bank shot, a recent conservative victory at the U.S. Supreme Court might leave the commission’s decisions more vulnerable to legal challenges.
Since the 1980s, U.S. courts followed a precedent known as Chevron deference. In short, where statutory language is vague and an executive agency can justify its interpretation, courts should defer to the agency’s judgement. During its most recent term, the U.S. Supreme Court nixed Chevron and put the responsibility for interpreting statutes squarely within courts’ purview.
Noti was quick to acknowledge that decision may lead to all kinds of negative outcomes.
“But I’ll say in this area, it’s likely to be quite beneficial,” he said. “Because to the extent that court review of FEC action has been somewhat hampered by a deferential posture that the courts have historically taken towards the FEC, there’s very clear indication now from the Supreme Court that that’s not appropriate.”
In a post-Chevron world, he argued, the FEC could face a higher level of legal scrutiny if it takes the kind of antagonistic approach to campaign finance law that Ravel described.
Follow OCJ Reporter Nick Evans on Twitter.
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