Yet again, the dysfunctional Federal Election Commission has deadlocked on a fundamental disclosure question involving whether politically active organizations that try to sway elections must identify their donors.
Three Democratic-leaning commissioners insist the groups should disclose their donors. Three Republican appointees say these groups aren’t obligated to register with the commission or name their donors. Under rules by which the FEC operates, disclosure loses.
The case dates to 2010, the year that Republicans took control of the U.S. House.
One of the groups, American Action Network, spent $17 million in Florida, North Carolina, Virginia and other states. That was nearly two-thirds of the money it spent that year, the Democratic appointees said. American Action Network is based in Washington, D.C., and chaired by former Sen. Norm Coleman, a Minnesota Republican.
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The other group, Americans for Job Security, based in Arlington, Va., spent $9.5 million on election-related activity in 2010. That was three-fourths of its money that year.
The groups paid for ads that did not expressly urge votes for or against any candidate, though that was implied. The ads urged voters to take action by, for example, telling their representatives to repeal the Affordable Care Act, or oppose new taxes.
One such ad, aimed at Sen. Patty Murray, D-Wash., said: “During her 18 years in Washington, Patty Murray voted for the largest tax increase in history and repeatedly voted against tax relief.
“But this November, Murray promises to vote for a huge tax hike on small businesses. Ever heard of helping small businesses, Patty? Tell Sen. Murray, ‘ouch.’ We can’t afford more tax hikes.”
The FEC’s general counsel last year concluded there was “reason to believe” that both groups had as their major purpose “the nomination of federal candidates, and should have registered with the commission.”
Three Republican commissioners disagree, contending the groups’ purpose was to advocate on behalf of issues. Requiring them to register would be burdensome and impinge on their First Amendment rights, they say.
Democratic appointees led by Ann Ravel, the commission’s vice-chair and former head of California’s Fair Political Practices Commission, answered:
“What seems to have been overlooked in the ongoing stalemate over the commission’s policy is that the entire purpose of the political committee status test boils down to a single, compelling policy interest: disclosure.”
Among the ironies, the U.S. Supreme Court, controlled by Republican appointees, repeatedly has urged disclosure, most recently in April when it struck down limits on the overall sums donors can give directly to federal campaigns, political parties and political action committees.
“With modern technology, disclosure now offers a particularly effective means of arming the voting public with information,” Chief Justice John Roberts wrote in the case, McCutcheon v. Federal Election Commission.
Spending by “dark money” groups increased in 2010 after courts opened the way for unlimited spending on independent campaigns by corporations and unions in the Citizens United and related cases.
The FEC estimates spending reached $310 million in 2012. Hundreds of millions more will be spent by the time votes are tallied this November. Some donors on the left use such groups. Many more from the right use them.
The case follows one from earlier this year in which the gridlocked commission voted 3-3 on whether Crossroads GPS should have been required to register and disclose its donors.
Crossroads, which spent $40 million in 2010, was the brainchild of Karl Rove, who was chief strategist for President George W. Bush, and former Republican National Committee chairman Ed Gillespie.
Congress should intervene to end the stalemate, but it won’t. That leaves courts to sort it out. Public Citizen Inc. and ProtectOurElections.org filed a motion in July urging a court in Washington, D.C., to require Crossroads to register as a political committee.
There is zero chance of a definitive ruling until long after votes cast on Nov. 4 are counted. That means voters will lose yet again.