As it obliterated yet another restriction on campaign spending, the U.S. Supreme Court last week made a point of claiming that there is full and fast public disclosure of campaign donations.
“With modern technology, disclosure now offers a particularly effective means of arming the voting public with information,” Chief Justice John G. Roberts Jr. wrote in McCutcheon v. Federal Election Commission.
“Databases,” Roberts wrote, “are available on the FEC’s website almost immediately after they are filed” and on private sites.
Do they really think we believe that?
A few blocks from the Supreme Court, the Federal Election Commission, the entity most directly responsible for compelling disclosure, was mired in gridlock. California’s own Ann Ravel had the temerity to describe the dysfunction at the FEC like she saw it, in a very public way.
“The Federal Election Commission is failing to enforce the nation’s campaign finance laws. I’m in a position to know. I’m the vice chairwoman of the commission,” Ravel wrote an op-ed in The New York Times the day after the high court issued its ruling.
That sent Ravel’s Republican colleagues into orbit.
“Of course, it’s the fault of the three Republican commissioners. Of course,” Republican Commissioner Caroline C. Hunter said at the commission hearing on the day the op-ed appeared.
Hunter demanded that Ravel explain herself, though it wasn’t exactly clear what Hunter expected Ravel to say.
“My op-ed speaks for itself,” Ravel said.
“It doesn’t speak for itself. I think it is irresponsible,” said Hunter, appointed to the commission in 2008 by then-President George W. Bush.
To get an idea of what was going on back there, I gave Ravel a call. The FEC is, to say the least, not a chummy place.
President Barack Obama last year plucked Ravel from California’s Fair Political Practices Commission, where she had been chairwoman. Six months after the U.S. Senate confirmed her, Ravel might be wondering why she left Sacramento where Democrats are dominant, where there are plenty of political scofflaws, and where she could actually help clean up the place.
“I can work with people,” Ravel told me, shortly after fending off Hunter’s verbal daggers. “I’m not actually a left-wing radical. I have compromised on a number of things. It is not like I’m a dogmatist.
“I thought I would be able to get some agreement on things I thought were important. But it became clear that they aren’t here to enforce this law. It is far more political than I had thought. In that sense, I was naive.”
Congress long ago condemned the Federal Election Commission to a special kind of purgatory, decreeing that the commission have three Democratic appointees and three Republicans. The result is deadlock on any case that matters, especially on ones in which secretive political organizations might be compelled to disclose their donors.
At the front of the line is a case involving Crossroads Grassroots Policy Strategies, a group that is the brainchild of Bush’s strategist, Karl Rove, and former Republican Party Chairman Ed Gillespie.
They created Crossroads GPS in 2010 a few months after the high court last struck down long-standing campaign regulation in its case, Citizens United v. FEC, which opened the way for unlimited corporate and union spending on independent federal campaigns.
Crossroads claims to be a social welfare organization, also known by the Internal Revenue Code section under which it operates, 501(c)(4). As such, it is not required to disclose its donors’ identities.
In November, the Federal Election Commission’s general counsel, responding to a complaint by liberal advocacy groups, concluded Crossroads should have registered as a political committee with the commission. That would have required that it disclose its donors.
To support the position that Crossroads is not a social welfare organization, the FEC’s general counsel noted that Crossroads spent 53 percent of its money on political advocacy in 2010, including ads that singled out candidates, all of them Democrats.
Among the ads were ones attacking Senate Majority Leader Harry Reid over his support for Obamacare, and California Sen. Barbara Boxer for casting a vote that would “sharply reduce benefits for some and could jeopardize access to care for millions of others.”
“Each of the Crossroads GPS ads features a clearly identified federal candidate, criticizes or opposes a candidate and was run in the candidate’s respective state shortly before the 2010 elections,” the general counsel wrote.
Ravel and the two other Democratic commissioners sided with the general counsel, conceding that the liberal advocacy groups were correct that Crossroads should cough up the identities of its donors.
Hunter and the other two Republican commissioners opposed that interpretation.
“The reformers want to enforce the law as they see it. We’re not going to compromise our principles,” Hunter told me by phone.
You might assume that with a 3-3 deadlock, neither side would win. Not so at the FEC. Even though the commission’s lawyers believe the Republicans are mistaken, the GOP commissioners prevailed when a Democratic appointee evidently agreed to authorize the FEC to defend the lawsuit.
“The issue that troubles me is that the three Republicans are a minority. It is not the position of the commission. This was a non-decision,” Ravel said.
When she said Republicans, earlier this year, shouldn’t be able to use government lawyers at taxpayer expense, Republican commissioners fumed and accused her of lacking collegiality. Imagine the unmitigated gall Ravel has to call gridlock what it is, dysfunctional.
If Crossroads prevails, then similar groups will become emboldened and spend even more heavily on political campaigns in 2014 and election years to come, while cloaking the identities of their donors.
Perhaps in a few years, Crossroads will end up as the next big case before the U.S. Supreme Court. Crossroads squarely raises the issue of disclosure. Justices would have to confront the question of whether there is, in fact, full and fast disclosure, or whether it’s a fiction.