What to Do About Campaign Finance Loopholes

The Supreme Court opened the soft-money floodgates in Wisconsin Right to Life v. FEC last June, but it did not change disclosure rules.

November 15, 2007

*Cross-posted from The Nation 

Let's set the record straight once and for all. The Supreme Court opened the soft-money floodgates in Wisconsin Right to Life v. Federal Election Commission
last June, but it did not change disclosure rules. The real problem is
that disclosure alone does not get us open, honest and accountable
government, and closing every loophole won't either. What we need is
public funding of federal elections, and we need it ASAP.

Contrary to a number of recent news reports (the New York Times article of November 12, "A New Channel for Soft Money Starts Flowing," is a good example), the Supreme Court has not sanctioned political advertising without disclosure. The Foundation for a Secure and Prosperous America
would not be subject to disclosure rules for its current South Carolina
ads featuring Senator John McCain, even if the Supreme Court had never
decided the Wisconsin Right to Life case. (I leave aside the
question whether the "foundation" should have been set up as a PAC.)
The law that the Court reviewed does not kick in until thirty days
before a federal primary election, and we're not there yet, even in
South Carolina. When we do get there, the ad sponsors will be subject
to the usual disclosure requirements. The Court did not touch them.
(Not yet, at least.)

The June case was a challenge to a specific provision of the
Bipartisan Campaign Reform Act ("BCRA," or "McCain-Feingold"), which
barred corporations from using treasury funds for "electioneering
communications"--certain political ads aired thirty days before a
federal primary or sixty days before a general election. Wisconsin
Right to Life is a nonprofit corporation that is covered by BCRA, and
it wanted to use its treasury funds to run electioneering
communications about Senator Russ Feingold and the filibuster of
judicial nominations. The Supreme Court ruled that the ads were
advocacy about an issue, not against Feingold, so the nonprofit could
use its treasury funds for those ads.

Media critics are right when they report that the Supreme Court opened the door for more spending. It is fair to say, as the Times
did, that "thanks to the recent Supreme Court decision," more soft
money will start flowing. But the Court did not sanction secret
financing of political advertising, and groups running electioneering
communications should know that they are still required to disclose
major donors and disbursements. In other words, if the South Carolina
ads continue to run during the period thirty days before the state's
mid-January primary, the undisclosed financiers of those ads will have
to be disclosed (unless they contributed less than $1,000). If the
advertisers don't disclose, they will violate federal law.

The media's relentless, and relentlessly narrow, focus on the ads
and the spending obscures the deeper problem with our campaign finance
system. We are fixated on the candidates' endless money chase and the
expected flood of corporate funds into shadow campaigns. But we have
forgotten why we care. The point is not to eliminate money from the
political process but rather to ensure that we have open, honest and
accountable government.

For that, we need fundamental reform, not just devices to close up
loopholes. We need public funding of presidential and Congressional
campaigns. With public financing of elections, elected representatives
can respond to the interests of voters instead of worrying about the
deep-pocketed donors on the lookout for loopholes.

Public funding won't stop the constant hunt for loopholes; that game
will continue as long as wealthy interests want to influence politics.
But loopholes just wouldn't matter as much if candidates had a
meaningful alternative to private largesse. That option is public
funding, and it is already working in states and localities around the

Federal bills have already been introduced for presidential and
Congressional public funding. This is not rocket science. What are we
waiting for?