Two senators, Republican John McCain and Democrat Russ Feingold, reached across party lines to write a campaign finance reform law that prohibited parties from seeking or taking huge contributions, and reinforced the ban on corporate and labor money paying for campaign ads in federal elections. It was called a bipartisan effort, but in reality the Republican leadership fought it bitterly for years. After the McCain-Feingold bill finally passed in 2002, Republican opponents led a lawsuit to have the measure declared unconstitutional, and after losing that suit it tried to limit enforcement of the law.
Meanwhile, the FEC, which included commissioners of both parties who were skeptical of reform, wrote regulations that deliberately weakened and distorted the law.
When President George W. Bush nominated a new slate of FEC commissioners in 2008, its three Republicans reflected even more strongly the party’s opposition to the law. The Democrats, mirroring their own party’s leadership, supported it, but without Republican cooperation they were unable to strengthen regulations. Since then, most important votes at the FEC have resulted in partisan 3-to-3 ties, leaving the commission essentially unable to act.
In this situation, the congressional sponsors of McCain-Feingold repeatedly sued the FEC to try to force it to do its job. Twice, federal courts threw out FEC rules that allowed too much coordination between candidates and supposedly independent political committees, and twice, the commission turned right around and wrote new regulations that were as permissive or worse.
As a result, this year we saw “independent” political action committees founded or principally funded by candidates’ fathers, mothers, siblings, ex-campaign lawyers, fundraising officials and former employees. We saw candidates travel or meet privately with the individuals who provided 90 percent or more of the funding for some of the “independent” super PACs. Candidates could appear at their events, endorse their work and even solicit money for them. Mitt Romney spoke to a meeting of donors to a super PAC that supported him; a super PAC backing President Obama was run by two former White House officials and was publicly endorsed by the president.
The story of secret money is depressingly similar.
One provision of the McCain-Feingold law requires groups spending money on election advertising to disclose any contributor of $1,000 or more. But in 2007, the FEC interpreted this fairly straightforward rule to mean that groups had to reveal only the names of donors who gave for the express purpose of funding campaign ads — something that is very difficult to prove.
In 2008, for example, a conservative group called Freedom’s Watch began running ads for Republican candidates. Its federal filings did not identify any donors, despite the fact that a subsequent FEC investigation showed that almost all of the group’s $30 million budget had come from one person: casino magnate Sheldon Adelson, making his debut on the political advertising scene. When the FEC had to rule on whether Freedom’s Watch had broken the law, it once again deadlocked 3 to 3 — with the Republican commissioners going so far as to say that donors had to be identified only if they designated their contributions for specific TV ads. Donors almost never do this; usually the ads are not even made until the money has been raised.