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Guest Post by Steve Gold, General Counsel for ActBlue

Stemming the growing tide of money in politics has become a fool’s errand. Recent opinions out of the Supreme Court have made it clear that the entrenched conservative majority have every intention of expanding the scope of constitutionally protected spending in campaigns, which means even more advertising by independent groups. And the Court’s attitude towards political money has now trickled down to the FEC, which is effectively on strike. Commissioner Donald McGahn, the ideological leader of the deregulating Republican commissioners, recently spent 45 pages (.pdf) excoriating what he considers his Democratic colleagues’ overzealous regulation of political activity going back years. Bolstered by opinions from the Roberts Court, McGahn principally argued one overarching point: The FEC is not permitted to exercise their judgment.

Under the law, the FEC may regulate campaign advertising only if the ad expressly advocates the election or defeat of a federal candidate. The statement issued by McGahn — and by extension the other Republican commissioners, who so often follow his lead — makes it clear that he (and they) will block the enforcement of rules on the books which instruct the Commission to consider contextual factors when trying to determine whether it contains express advocacy, not just the words or images within the four corners of an advertisement. McGahn believes that the rule should be that, unless a special interest runs an advertisement containing the “magic words” listed in Buckley v. Valeo (vote for, elect, support, etc.) or their “functional equivalent,” then the FEC has no business regulating it. Insert advertisement; check for magic words; out pops regulation. Or not.

The problem with this approach is that IBM recently demonstrated (although they may not know it) that the vast majority of political spending will fall outside the rule, and thus, regulation. Some very smart engineers at IBM worked for years developing a very smart computer named Watson that could compete with the very smartest Jeopardy contestants. Like McGahn’s “four corners” rule, initially the engineers programmed Watson to rely on millions and millions of “rules” in order to reason out the answers to questions: water is wet; parents love their children; you smile when you’re happy. They quickly found that, unlike the best Jeopardy players who answer correctly 90% of the time, Watson could only find the right answer 10% of the time by relying on matching the magic words with the rules. It wasn’t until the engineers allowed Watson to look for patterns in multitudes of old Jeopardy questions, providing the context needed to decode a Jeopardy clue, that Watson managed to perform like a real contestant and defeat two of the greatest ever to play the game. No simple rule could ever have provided Watson with the key to that lock.

The essence of a Jeopardy clue, and of political advertising, is complex language: puns, double meanings, allusions. Candidates and their surrogates campaign in poetry, but the Supreme Court and the FEC have said campaigns must be regulated in prose. The inevitable result is that campaign finance reform will only ever be able to restrict a very small portion of the spending done by forces which distort our political discourse, at least until there is a significant change in personnel on the Court. The obvious answer, as Yale Law professor Heather Gerken argues, is to focus on “leveling up” and “using politics to fix politics.” Rather than attempting to keep corrupting money out of the system, we should increase the amount of productive money in the system to neutralize that unproductive money. Exciting new approaches in this vein have been suggested and even introduced in Congress, such as four-to-one matches of small-dollar contributions to publicly financed candidates.

But the potential also exists today — without a federal program that would have to get through a Republican-controlled House and survive future attempts at legislative defunding or dismantling (such as the Presidential public financing system now faces) — to achieve this leveling up through greater engagement and smarter fundraising within the existing private system. For example, in the past few weeks activists and organizers fighting to preserve collective bargaining rights in Wisconsin have taken to the Internet and used the tools we offer at ActBlue to generate twenty-five thousands plus contributions, totaling more than half a million dollars. These contributions came from ordinary people using the existing campaign finance rules to stand up to the Koch brothers’ back room plot to hijack Wisconsin public policy. That is a force that neither requires government approval nor is at the government’s mercy; in fact, it’s protected by the Supreme Court! It’s democracy in its purest form, and it can save our political system.

There are many different approaches to using politics to fix politics, and there will certainly be many more great ideas to come. For decades, conservatives have been working diligently to chip away at the lines drawn by campaign finance reformers to keep money from corrupting our democratic system. Clearly, this conservative effort has gained considerable momentum on the Supreme Court and at the FEC of late, and their momentum is not likely to be reversed anytime soon. That is why now is the perfect time to harness that very momentum and use it to usher in the next big thing in campaign finance reform.

Guest post by Steve Gold, General Counsel at ActBlue

Tie votes split 3-3 along party lines* have become par for the course at the Federal Election Comission (FEC), which requires a four vote majority to take any action. In the latest deadlock, the FEC failed to take up the task of making rules to comply with last year's Supreme Court decision in Citizens United v. FEC. The result has been increasing uncertainty about campaign finance rules, as well as a Wild West environment where Sean Hannity is permitted to use his position as host of a radio program (paid for by Clear Channel Communications) to openly solicit contributions (.pdf) for a Republican candidate.

Following the Citizens United decision that struck down several campaign finance regulations related to corporate speech, the FEC needed to officially remove these regulations from the books through a formal rulemaking process. They attempted to begin that process late last month.

The Democratic commissioners offered a proposal (.pdf) suggesting that the public be allowed to weigh in on whether the FEC should also implement new regulations to fill in the gaps created by the Supreme Court's decision that corporations could run political ads. Should the public have a say as to whether current disclosure rules require something more than disclaimers like, "Paid for by Americans for Mom and Apple Pie" on political ads run by shell entities created by corporate interests? The Republican commissioners said no, accusing the Democratic commissioners of holding the process of eliminating the defunct regulations hostage to their quest for more regulation of speech.

Who is at fault? Observers of the FEC have long argued that the Republican commissioners are stonewalling any effort at enforcing the law. Republican commissioners and their supporters have begun firing back, saying that everyone agrees these old regulations must be taken off the books, and if the Democratic commissioners would leave it at that there would be no deadlock. After the old regulations are struck from the books, Republicans say the new regulations sought by the Democratic comissioners could be taken up in a separate rulemaking process.

It's an insincere position for many reasons, not the least of which is the Republican commissioners' deeply-held belief that there should be no such additional regulation; one GOP commissioner was quoted as saying, "The last thing we need is even more regulation." Even if the newly sought regulations were included in a separate rulemaking process, the Republican commissioners have signaled they would again vote as a bloc to prevent the process from going forward. The Republican commissioners are hiding behind their anti-regulatory ideology as an excuse to deny the public an opportunity to exercise their First Amendment rights.

There is no harm in leaving the old regulations on the books. Eventually, the regulations need to be taken off of the books, but that's merely a housekeeping matter. When the Supreme Court overruled the regulations in question the FEC immediately (a year ago now) issued a statement saying it would not seek to enforce them, a position that they have abided by. The feigned urgency of removing these regulations is a symbol of the Republican commissioners' desire to deregulate our political system and nothing more; as the same GOP commissioner put it, this is a rare opportunity to shrink the Code of Federal Regulations, as though the existence of a regulation is reason enough to abolish it. In contrast, the Republican commissioners' vote to block necessary new regulations comes with a substantial cost: it leaves corporations free to game the system of existing disclosure requirements in order to clandestinely impact our elections. We saw Target attempt to do so in Minnesota last year, and other corporations that we haven't found out about yet (and maybe never will) surely did the same.

Disclosure is the lifeblood of our campaign finance laws. There is a clear need to adjust the campaign finance disclosure regime in response to the introduction of corporations into the campaign finance business, courtesy of the Supreme Court. The FEC, with three Republican commissioners dead set against any new regulation, appears unable to meet this challenge. What to do about their inability to act will be the topic of a panel I am planning to moderate entitled, "The FEC: Friend or Foe?" at this year's Netroots Nation convention June 16-19 in Minneapolis. A group of experts and practitioners before the FEC will discuss what's causing the deadlock and how to address it. If you'll be at Netroots Nation, keep an eye out for the panel; and if you aren't yet planning to attend, hopefully I've convinced you to stop by and find out the rest of the story.

*By law, the FEC is composed of three Democratic commissioners and three Republican commissioners.

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