I am pleased to welcome Karen Sebold to ELB Book Corner, writing about her new book, Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission. (Use that link with code LXFANDF30 for a 30 percent discount). Here is the first of three posts:

I want to thank Rick Hasen for the opportunity to post about my new book, “Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission.” My posts discuss the main themes of the book, using edited excerpts from the text.

Today’s post explores one of the primary themes of the book: loose campaign finance laws and even laxer enforcement. Campaign finance is a complicated issue that involves a trade-off between the collective good of fair and honest elections and the constitutional right to participate freely in the political system. Congress struggles with what the law should restrict and what it should protect, and the Supreme Court and federal courts have made it challenging to limit political campaign finance activity, as they often uphold the constitutional right to participate freely in the political system when making decisions on campaign finance. This has led the U.S. to develop a loose campaign finance system that allows various entities to raise and spend money for electoral purposes, including political candidates, political parties, interest groups, wealthy donors, non-profits, and businesses, to influence the outcomes of elections. There is now a regime of outside groups that galvanize vast resources for electioneering activities to shape the outcomes of elections. In the 2024 election cycle, these groups spent over $4 billion on the federal races (https://www.opensecrets.org/outside-spending/by_group). There are also numerous legal “gray areas” in campaign finance law that give rise to disputes about what can and cannot be done regarding campaign spending.

The U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission (FEC) in 2010 is often cited as a significant reason for loosening the campaign finance laws, as it removed prior spending restrictions on independent groups funded by corporations, labor unions, and wealthy donors as long as there was no coordination with the electoral candidates or political parties. Of course, most ELB Book Corner readers may be aware that this legal decision has been loosely adhered to, as electoral candidates are now increasingly relying on independent groups for campaign messaging and get-out-the-vote efforts. The Brennan Center for Justice highlighted how, during the 2024 election, when Donald Trump was trailing Kamala Harris in the money race, he “was able to compensate for this disadvantage by outsourcing much of his campaign to his super PACs and other outside groups funded by a handful of wealthy donors” (https://www.brennancenter.org/our-work/research-reports/fifteen-years-later-citizens-united-defined-2024-election). Of course, who can forget the notorious $1 million a day giveaway to voters sponsored by Elon Musk’s America PAC in the swing states, aimed at encouraging citizens to register to vote.  Some election administration experts believe it is tricky to say this was a violation of the law because, technically, Musk was not paying people to vote or register to vote, but instead asked people to sign a petition promising to register to vote (https://www.nbcnews.com/tech/tech-news/musk-1-million-voter-petition-lottery-falls-legal-gray-area-experts-s-rcna176362).

Other than a warning from the U.S. Justice Department that the sweepstakes may violate federal law (https://www.cnn.com/2024/10/23/politics/elon-musk-justice-department-letter). Musk has faced no other consequences for this brazen and potentially illegal violation of federal campaign finance law. It is unlikely that the FEC, the primary agency for overseeing and enforcing campaign finance law, will hold Musk accountable, given the loose legal framework under which the agency operates and the structure of the agency’s decision-making panel. My new book examines the FEC’s structure and how it operates, illustrating how campaign finance oversight is challenging due to the loosening of campaign finance laws, limited resources, and the hyper-partisanship at the FEC. The FEC is led by a panel of six partisan commissioners, with up to three Democrats and up to three Republicans. At least four commissioners must agree when making a decision on most agency decisions, making it easier to block a decision than to agree to one.