Ned Barnett

FEC veteran laments ‘dark money’ in elections

FEC commissioner Ellen Weintraub
FEC commissioner Ellen Weintraub

Ellen L. Weintraub, a longtime commissioner on the Federal Election Commission, thinks the FEC’s six commissioners should get out more. Certainly there’s not much point in their staying holed up in Washington. They’re hopelessly split, with three Democrats and three Republicans, and getting almost nothing done.

The Washington Post’s Dana Milbank wrote recently of the FEC’s impasse: “If you’ve been thinking of breaking federal election law, this would be an excellent time to do it, because the chance of being caught is close to nil. There is no cop on the beat.”

Weintraub, a Democrat, has given up hope of persuading her Republican commissioners to enforce election laws. But she thinks they might be swayed if they would go out into the states and speak with people being bombarded by political TV ads, many of them sponsored by vaguely named groups that don’t disclose their donors. “It’s important for us to hear how our rules trickle down and affect them,” she says.

Leading by example, the FEC commissioner visited Raleigh last week to speak to N.C. Voters for Clean Elections and to meet with The News & Observer’s editorial board. A trip to North Carolina was no accident. North Carolina is ground zero for exploding and largely unpoliced political spending. In the state’s U.S. Senate race between incumbent Democrat Kay Hagan and Republican state House Speaker Thom Tillis, outside groups nominally unconnected to the candidates’ campaigns had spent nearly $30 million through the end of September, according to the Brennan Center for Justice at the New York University School of Law.

The rising amount “is shaping up to be the biggest amount of outside spending in this election. It may turn out to be the most ever,” said Ian Vandewalker, counsel for the Brennan Center’s Democracy Program.

Nationally, the amount spent on political TV ads has reached nearly $1 billion. About half are bought by groups that don’t disclose their donors.

Weintraub is impressed by the volume of cash, but she’s more worried about the sources of the funding being hidden. She notes that Ronald Reagan, both Presidents Bush and even Barry Goldwater supported disclosure of donors. “I don’t know when disclosure became a partisan issue, but unfortunately it has become that,” she says.

Whenever the change occurred, the combination of big money and no transparency was greatly accelerated by the Supreme Court’s Citizens United ruling. That allowed corporations and unions to give unlimited amounts to “issue groups” that tear down one candidate but claim not to be affiliated with the candidate’s opponent. The illusion of separation has become so thin some so-called C-4 issue groups are being formed with a single candidate as their “issue.”

The lack of disclosure allows voters to be more manipulated than informed by political ads, Weintraub says. “You can’t evaluate ads if you don’t know who is behind them,” she says.

Groups that don’t disclose their donors say companies and wealthy people might be criticized or harassed if their support for such ads became public. Weintraub sees hypocrisy in that defense. “They claim the right to spend millions of dollars ripping other people to shreds, but they don’t want anybody to say anything bad about them,” she says.

Issue groups make a mockery of their name by supporting personal attacks. When challenged, Weintraub says, the groups say the candidate’s character is an issue.

“That’s not an issue,” Weintraub says. “There are issues out there, but these ads are not about issues. They are about candidates.”

One way to close the loophole is to define issue groups not by their tax status, as is currently the case, but by their actual activities. But with a gridlocked Congress, created in part by the flood of money from narrowly based groups, and the gridlocked FEC, created in whole by Republicans appointing commissioners hostile to the concept of regulating and limiting campaign spending, changes in rules to meet changes in funding appear to be years away.

Meanwhile, the money flows in unchecked. Many Republicans, and five Supreme Court justices appointed by Republicans, believe this is as it should be. Political giving is a form of political expression, they say, and limiting it in cases outside of outright bribery is a suppression of free speech.

But that standard ignores soft corruption. The buying of access and the favor of an elected officeholder is a form of corruption. Corruption isn’t limited to handing over a bag of money in return for a vote.

As Weintraub sees it, Citizens United did not expand free speech. It narrowed it. “Only the voices of the rich are coming through,” she says.

The First Amendment should serve those who lack the resources to be heard. Instead, freedom of speech, like so much else involved in political funding, has undergone an Alice in Wonderland inversion. Free speech is not free. In politics, it belongs to a nameless oligarchy. And they exercise it so relentlessly with TV ads that they drown out the voices of everyone else.