Sandstrom: The FEC has failed to address various campaign financing issues, leaving the public unaware of money distribution
Jeb Bush's claim of non-candidacy has allowed him to raise tens of millions of dollars
Sandstrom: FEC needs to do its job and make the "tough calls"
Editor’s Note: Karl Sandstrom is senior counsel for Perkins Coie LLP and served on the Federal Elections Commission from 1998 to 2003. The opinions expressed in this commentary are his.
No one would dispute that competitors, regardless of their sport, are entitled to know what the rules are. Basic notions of fair play require that the rules be known and enforced even-handedly. Yet when it comes to elections, there appears to be no rule book, and the umpires seem reluctant to make any politically tough calls.
Former Florida Gov. Jeb Bush’s long-standing claim of non-candidacy – expected to finally end in coming days – has highlighted the complete inattention to basic fairness in campaign financing by the very regulatory agency responsible for its oversight.
For months now, Bush has avoided actually saying he is a candidate, while fully acting as if he is one. Bush’s campaign claims he is not breaking any rules by raising unlimited funds – tens of millions of dollars – from individuals, corporations and trade groups that would be illegal and subject to possible criminal prosecution if he indeed were a candidate. Federal law prohibits corporations, trade groups and labor unions from contributing directly to candidates, and limits an individual’s donations to $2,700 per candidate in an election.
Is the Bush “non-campaign” evidence that the law can be easily evaded?
Whether the answer is yes or no, someone needs to make the call. The key decision maker in this case is the Federal Election Commission, a six-member panel (three Republicans and three Democrats) that has – on this issue and on a host of others – failed in its most basic responsibility to tell the public what the law is. Just a few recent examples demonstrate the agency’s failure to make timely critical decisions.
For one, federal law prohibits foreign nationals from making contributions and expenditures in any election. Does this broad prohibition cover money spent to influence the outcome of a ballot measure? Or can a foreign government spend unlimited sums seeking to influence a state or local referendum? Commission regulations simply do not provide an answer.
There was however, a complaint on which the Commission deadlocked in April. The staff’s legal analysis in that case suggests that foreign nationals and governments may spend unlimited funds to influence state and local ballot measures. If the Commission indeed believes that this spending is lawful, it should act and propose a rule allowing foreign governments and corporations to influence ballot measures rather than not making a call at all, which is what it chose to do. The public and Congress would then have the opportunity to weigh in on the proposal as well.
Another example is the provision of federal election law that prohibits government contractors from making contributions in federal elections. Can that law be easily circumvented by having the parent company of a government contractor make the contribution? Or, if the parent is the government contractor, could a wholly-owned subsidiary company make the contribution?
Despite recent enforcement matters that have raised these questions, the Commission has failed to produce a regulation that provides an answer. This leaves open the possibility that major federal contractors may find an easy – and profitable – avenue around the prohibition.
A last example of a major question of federal election law that the Commission is leaving unanswered is whether the dozens of organizations that are spending tens of millions of dollars to influence our federal elections must disclose their donors to the public. The Commission has provided little useful guidance.
As a consequence, the public is being left in the dark not only about hundreds of millions of dollars that will be spent in the coming year to influence who will be our next President, but also about whether the law allows these vast sums of money to go unreported. Again, whatever the answer may be, it should not be a matter of private thinking among the Commissioners. The public is entitled to know the rules and expect that they will be enforced.
It should come then as no surprise that a “non-candidate” such as former Gov. Bush believes the continuing silence of the umpires is license to play ball by his own rules. As the players take the field for next year’s elections, they should all have the same rule book and have confidence that the Commission will ignore the booing and make the tough calls. If you get paid to be an umpire, you need to do your job.