This post first appeared at Brennan Center for Justice.
On November 25, Judge Amy Berman Jackson of the federal district court in Washington, DC handed transparency advocates a victory, when she (again) struck down a deeply flawed Federal Election Commission (FEC) rule that has helped fuel the explosion of “dark money” — political spending from unknown sources — in US elections. Judge Jackson has the law and common sense on her side, but the ultimate impact of her ruling remains to be seen.
The rule at issue governs “electioneering communications” (ECs) — broadcast, cable or satellite communications referring to a clearly identified federal candidate during the run-up to an election. Such ads do not explicitly advocate a candidate’s election or defeat, but the vast majority plainly are election-related. Voters deserve to know who is paying for this advocacy, and what they want from the government. Praise for a candidate from your regional chamber of commerce, for instance, merits different scrutiny than praise from a big oil company in another state. Criticism from a local veteran’s group is not the same as criticism from a faraway defense contractor.
Even the Supreme Court’s conservative majority understands this. As Chief Justice John Roberts observed in April’s McCutcheon decision, disclosure is valuable because it “arm[s] the voting public with information,” thereby preventing “the potential for abuse of the campaign finance system.” No less a foe of regulation than Justice Antonin Scalia has noted, “[r]equiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” A society that campaigns anonymously,” he continued, “does not resemble the Home of the Brave.”
For a time, those in power took such wisdom to heart. Disclosure was a centerpiece of the Bipartisan Campaign Reform Act of 2002 (a/k/a “McCain-Feingold”), after which transparency became the norm for federal elections. But then the Court decided to open the floodgates for corporate and union spending on elections and — despite its own embrace of transparency — neither Congress nor the FEC could summon the political will to update federal disclosure rules. Their inaction has left federal elections awash in dark money, even as the Supreme Court continues to extol sunlight.
The rule at issue here has an especially sad, convoluted history. It was promulgated in 2007, after the Supreme Court first opened the door for corporations and unions to spend money on ECs. Although the Court never suggested such spending should be kept secret, the FEC mistakenly thought it was heading that way, and so came up with a weak, watered down regulatory text. This language required new corporate and union political spenders to disclose only the names of contributors who donated “for the purpose of furthering electioneering communications.” Election lawyers promptly drove a semi truck through this apparent loophole, claiming that corporations and unions running ECs only had to disclose contributors who gave to further a specific communication (which almost never happens). In what has become a predictable pattern, half of the FEC adopted their view, and that was the end of meaningful EC disclosure — notwithstanding that Congress never even hinted at such a result.
In 2011, Representative Chris Van Hollen sued to vindicate the original intent of McCain-Feingold; legal wrangling has continued ever since. In fact, this is not even the first time Judge Jackson has struck down the FEC’s rule. In 2012, she held that it violated the plain language of McCain-Feingold. A panel of the DC Circuit initially backed this conclusion and allowed her order to go into effect, but then a different panel reversed and directed her to go back to the drawing board. Now the judge has issued a new order, holding that even if the text of the statute itself is ambiguous, the FEC’s rule was based on a faulty premise and simply cannot be squared with the intent of Congress. And so the rule has gone down a second time.
Proponents of disclosure have every right to celebrate, but the future of this issue is far from clear. Judge Jackson’s order will almost certainly be appealed again to the DC Circuit, and from there could head to the Supreme Court. Sooner or later, the Court will have to confront the gap between the picture of full disclosure it has painted in its rhetoric and the dark money reality its decisions have actually fostered. Nobody, maybe not even the justices, knows what will happen then.
In the meantime, the practical impact of last month’s decision will be limited. Through a quirk in the law, ECs are now subject to more disclosure than communications containing an explicit call to vote for or against a candidate (which have their own loophole). Political spenders need only tweak the language of their ads to continue keeping their donors secret. In fact, most have already done so. The use of ECs declined precipitously following Judge Jackson’s 2012 ruling, and has never really rebounded. So little will change. Real, comprehensive reform will have to wait for another day.