February 28, 2011- Independent political groups, especially those backing conservatives, say federal disclosure law doesn't apply to them. The FEC is at an impasse. Democrats want full disclosure of who's paying for political ads; Republicans say they favor a hands-off approach.
If an impasse at the Federal Election Commission remains, corporations, unions and wealthy individuals will be able to fund hundreds of millions of dollars in campaign advertisements for next year's presidential and congressional elections while keeping their names and roles secret.
The agency's three Democratic commissioners want full disclosure — saying current law and the Supreme Court's most recent decision on campaign spending require it. The three Republican commissioners challenge that interpretation and favor a largely hands-off approach.
Last year, in a landmark ruling, the Supreme Court said for the first time that corporations and unions had a constitutional right to spend unlimited sums on campaign advertising so long as it was independent of candidates or parties. At the same time, the court reaffirmed an existing federal law, which says that "all contributors" of $1,000 or more to an "electioneering communications" fund must disclose their identities to the FEC.
The justices said they foresaw a new era of corporate-funded ads combined with "effective disclosure" so citizens and shareholders would know who was paying for the messages. "This transparency enables the electorate to make informed decisions," Justice Anthony M. Kennedy said.
But many independent political groups, especially those dedicated to electing conservative candidates, have taken the position that the disclosure law does not apply to them because their donors are unaware of exactly how their money will be spent. Last year, outside groups that were separate from candidates and political parties spent $294 million on campaign ads, four times more than in 2006.
Their interpretation has been challenged before the FEC. By law, the agency is governed by a six-member board with three Republicans and three Democrats. The commission is deadlocked, casting the disclosure provision into limbo as it applies to independent political groups.
Last month, Democrats on the commission proposed stricter disclosure rules, but the commission split 3 to 3.
Defenders of tight campaign finance laws are sounding an alarm.
"Last year was a practice run. Enforcement of the disclosure rules has collapsed. And unless the FEC is fixed, the American public will be in the dark as to who is buying the White House and Congress," said Craig Holman, a lobbyist for Public Citizen.
Several liberal advocacy groups sent a letter to Congress recently saying the FEC should be investigated as a "broken agency." They also sent a letter to President Obama calling on him to fire the FEC commissioners and appoint new ones who will "break the deadlock" and enforce the law.
Obama's options, however, may be limited. Senate Minority Leader Mitch McConnell (R-Ky.), a fierce critic of campaign finance laws, has insisted on GOP commissioners who share his views. Theoretically, critics could take the FEC to court, but such a case would be difficult and probably drag on for years.