Fire alarms are sometimes housed in boxes labeled “Break glass in case of emergency.” The Federal Election Campaign Act has such a box; it’s the provision that allows complainants to sue respondents directly when the Federal Election Commission fails to enforce the law itself (52 USC § 30109(a)(8)(C)). In the 44-year history of the FEC, this provision has never been fully utilized. Today, I’m breaking the glass.
Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint in June 2012 –nearly six years ago – alleging that the American Action Network spent millions of dollars on advertising designed to influence elections, was therefore a political committee, and should be thus required to disclose its donors. In the years that have followed, several of my colleagues, over my objections, have repeatedly acted to shield the sources of American Action Network’s millions of dollars in dark money from public view. The Commission has been hauled into U.S. District Court twice and has twice been told in no uncertain terms that these colleagues’ approach is “contrary to law.”
Most recently, in a sharply worded March 20, 2018 opinion, U.S. District Court Judge Christopher R. Cooper found the arguments of the controlling bloc of commissioners to be unserious, granted CREW’s motions for summary judgment against the Commission, laid out the correct path for analyzing American Action Network’s political advertising, and ordered the Commission to conform within 30 days. By the terms of the Court’s order: “If the FEC does not timely conform with the Court’s declaration, CREW may bring ‘a civil action to remedy the violation involved in the original complaint’” (citing 52 USC § 30109(a)(8)(C)).
Over a difficult and frustrating decade at the Commission, I have seen colleagues with a deep ideological commitment to impeding this country’s campaign-finance laws erode the public’s right to free, fair, and transparent elections. These commissioners have rejected the Supreme Court’s conclusion that transparency in campaign finance “enables the electorate to make informed decisions” and to hold elected officials accountable (Citizens United v. FEC, 558 U.S. 310, 371 (2010)). Their actions in this matter – and over the past decade – have convinced me that despite two clear defeats before the District Court, they will eventually find a way to block meaningful enforcement of the law in this and any other dark-money matter that comes before us.
This matter holds real promise of shining a bright light on a significant source of dark money. It’s time to break the glass and let this matter move forward unimpeded by commissioners who have fought every step of the way to keep dark money dark. I fully support the sound reasoning of the Court’s March 20 opinion. That is why I believe CREW can and should pursue its complaint directly against American Action Network, as Congress provided for under the Federal Election Campaign Act. My goal here, as always, is to enforce America’s campaign-finance laws fairly and effectively. Placing this matter in CREW’s hands is the best way to achieve that goal.