This month, CLC filed an unusual lawsuit. One of the first of its kind, in fact.
Two weeks ago, our litigators filed suit directly against Iowa Values—a secretly-funded “dark money” nonprofit whose primary purpose was to support the reelection of Sen. Joni Ernst—for failing to register as a political action committee (PAC). In failing to do so, Iowa Values deprived voters of timely reports on its spending to influence a Senate election and critical information about who its funders are.
What’s unique about this lawsuit is, we are directly bringing the claim against Iowa Values to court—not the Federal Election Commission (FEC), the federal agency solely tasked with overseeing our nation’s campaign finance system.
Why are we filing this complaint directly? Because once again the FEC—which is supposed to handle this kind of enforcement—failed to do its job of protecting voters’ right to know who is trying to influence their vote. In response to our suit against the FEC last year, the court ordered the Commission to act on CLC’s administrative complaint against Iowa Values—and the FEC ignored the court order and did nothing. As a result, the court ordered that CLC may use a rarely claimed right in the law to sue Iowa Values directly, a right almost never invoked by a non-governmental entity.
This is yet another example of dysfunction with the FEC, the agency which I used to chair (back when it worked better to protect the voices of all voters!).
Over roughly the past decade, the FEC has routinely failed at enforcing our laws, even when presented with overwhelming evidence of likely legal violations. Our democracy has suffered as a result. The FEC’s failure to enforce our laws has resulted in an explosion in secret spending, and politics increasingly rigged in favor of special interests.
The agency’s structure is a major cause of its dysfunction. Under current law, the FEC is led by six commissioners, no more than three of whom can be from the same political party. To pursue investigations or take any other action—audit a committee, open a rule making, even agree to meet—at least four of the six commissioners need to agree.
When this structure was first created, it was designed to ensure the Commission’s actions were bipartisan and therefore presumably fair to both major parties.
However, around the mid-2000s, congressional opponents of campaign finance regulation began to prioritize the selection of FEC commissioners who were ideologically opposed to campaign finance laws and their enforcement.
Now, the FEC’s structure results in frequent 3-3 “deadlocks” on most important matters, meaning the FEC doesn’t have the four votes required to proceed to open an investigation, make a legal finding or otherwise enforce the law—against anyone, Democrat or Republican. A bloc of commissioners routinely votes to prevent the FEC from acting on important issues like disclosure of secret money, super PAC coordination, transparency for digital political advertising and more.
As I wrote in a law review article last year, the FEC wasn’t designed by Congress to fail. For the first three decades of its existence, the FEC did perform its functions at least reasonably well. During the time I was an FEC commissioner between 1991 and 1995, I can recall only one time when the agency deadlocked on an enforcement matter.
But today, deadlocks have become the norm. As the FEC itself admitted to the Committee on House Administration in 2019, the FEC has had at least one deadlocked vote in the majority (50.6%) of the enforcement matters it has considered since 2012.
Ultimately, opponents of campaign finance regulation—not to mention special interests seeking to buy influence, and politicians who thrive in a money-drenched political system—have come to prefer a dysfunctional FEC that routinely fails to carry out its mission.
Congress needs to fix the FEC so it will do a much better job of protecting the voices of all voters, not just special interests.
H.R. 1, the “For the People Act”—which is slated to be on the House floor next week—would deliver such reforms of the Commission. H.R. 1 draws from bipartisan proposals to restructure the FEC and address its well-documented problems. Importantly, it would change the number of FEC commissioners from six to five to avoid deadlocks, and it would require that no more than two commissioners be members of the same political party, effectively requiring at least one vote from either an independent or a member of a different party. Fellow former FEC Commissioner Ann Ravel and I explained these reforms, and why Congress should adopt them, in a letter we sent to House and Senate leaders today.
If the For the People Act does pass and is indeed signed into law by President Joe Biden, it will likely meet court challenges, just as did the McCain-Feingold law and the other reforms CLC has defended over the years, and we will be there to help defend the new law. We’ll also work to help make sure the reformed Commission does its job.
For now, we have a unique opportunity to ensure our laws are enforced, with our Iowa Values lawsuit. We also have an opportunity to address the root of the problem—the inability of the FEC to effectively oversee the integrity of our campaign finance system—with the For the People Act. Let’s get that passed into law.
The nonpartisan Campaign Legal Center advances democracy through law at the federal, state and local levels, fighting for every American’s rights to responsive government and a fair opportunity to participate in and affect the democratic process.
