Who is funding the 2016 campaign? We may never know. Millions of dollars are being spent by "dark money" groups that don't disclose their donors, benefiting candidates like Marco Rubio. The Federal Election Commission, the entity that enforces our campaign finance laws, is crippled by partisan deadlock and ideological infighting.
The Commission on Hope, Growth, and Opportunity has an upbeat, forward-looking name. It claimed that it was meant to educate the public on economic issues. But it actually served as a conduit for secret campaign donations, and internal documents made it clear that it was solely focused on helping Republicans win key congressional races.
In the 2010 election, the CHGO spent about $4 million on campaign advertisements without disclosing its donors. After an investigation, the Federal Election Commission's general counsel reported that the CHGO was trying to influence federal elections and thus should let the public know where its funding came from.
Despite this evidence, the FEC's membership repeatedly deadlocked on enforcement action. Finally, in November 2015, the FEC ruled that the statute of limitations had expired and no action would be taken against the CHGO. This sad tale has been only too typical for the commission.
The Federal Election Commission was created in 1975 to carry out the campaign finance laws passed in the wake of Watergate. Previous laws had failed, in part because of the lack of an entity charged with enforcement. But the FEC was always hindered by a structure that undermined its effectiveness.
Originally, only two of the six commissioners were named by the president, with others chosen by leaders of the House and Senate. The Supreme Court ruled that this appointment process was unconstitutional, but it continued in practice.
Congressional leaders "recommend" appointees to the president, with no more than three coming from the same party. While this curbs any partisan abuses by the FEC, it also set up the commission for repeated deadlock, especially since Congress required four votes to conduct many actions. In addition, Congress has frequently saddled the FEC with an inadequate budget and time-consuming procedural requirements.
The FEC has had a troubled history. In its early years, commissioners were often ineffectual veterans appointed over and over. Increasingly, its Republican commissioners have been hostile to the FEC's very mission. In 2000, congressional Republicans pressured Bill Clinton to accept law professor Bradley Smith, whose views were summarized by the title of his book: Unfree Speech: The Folly of Campaign Finance Reform. (Smith, however, was willing to apply the law as a commissioner). But the commission functioned at a reasonable level.
A long battle during President George W. Bush's second term left the FEC inert during the 2008 campaign. Democratic opposition to Hans von Spakovsky, a highly controversial Republican nominee, left the Senate in deadlock.
During the first half of 2008, the commission lacked enough members to perform many of its most important functions. Even after that conflict was resolved, the FEC still faced serious difficulties. Continuing deadlock kept the commission from issuing important rulings defining the roles of Super PACs.
But the stalemate has worsened in recent years. Perhaps reflecting the growing polarization of Congress, the atmosphere at the FEC has grown especially noxious, and its ability to function has collapsed. Republican commissioners have stated that they are content with a demoralized and dormant agency, since they prefer inactivity to what they see as tyranny.
The number of deadlocked votes has reached a new high, while enforcement actions have reached an all-time low. Senate Republican leader Mitch McConnell, a fierce opponent of campaign finance reform, has placed members on the commission with little appetite for enforcement. (Donald McGahn, one of those Republican appointees, once declared, "I'm not enforcing the law as Congress passed it. I plead guilty as charged.")
According to a federal government survey, the FEC's employees have among the lowest morale levels in the executive branch. After its general counsel resigned in despair, the FEC spent two years without a chief lawyer. Ann Ravel, an Obama appointee and the former head of California's Fair Political Practices Commission, sought to make the commission function during her term as chair, but mostly encountered frustration.
The FEC is inherently flawed. Instead of a commission prone to deadlock and vulnerable to partisan sabotage, it should become an independent regulatory agency that's focused on implementing and enforcing the law. And it should be adequately funded so that it can do its job.
Barring such a reboot, the FEC at least needs the appointment of commissioners committed to making it work. It should also have a full complement of commissioners on active terms — four of the six are currently serving expired terms. Some have also suggested that an expert commission could recommend nominees to the president, rather than leaving it to congressional leaders.
The FEC's frozen state is particularly dismaying given how campaigns, nonprofits, and Super PACs are making a mockery of the law during the 2016 campaign. We need pragmatic campaign oversight that restores Americans' confidence in our election system and that takes action when it still matters.
Richard Skinner is a policy analyst with the Sunlight Foundation.