“Let’s be Real Here”? A Retort

After five years of gridlock, last week a majority of four of six commissioners at the Federal Election Commission finally voted to update the FEC's regulations to comply with the Citizens United decision. For years, the three commissioners representing the Democrats insisted that along with updating the regulations the commission should add new "disclosure" requirements. Thankfully, Democrat appointee Ann Ravel, who has served on the commission for just over a year, finally agreed to break the stopgap and drop the demand. One of her fellow Democrat commissioners Ellen Weintraub—who has served on the commission for a long time and remains despite her latest term being years expired—is not pleased, and issued a statement of reasons why she would not vote to simply follow the Citizens United precedent.

It reads like a hip high school civics teacher ranting about campaign finance. Like most rants from hip high school civics teachers, it's also a bit too liberal with its platitudes:

Let's be real here. We are not talking about disclosing the names of individuals printing flyers on their home computers and hand-distributing them to their neighbors. We are talking about multimillionaires and billionaires spending millions of dollars to influence elections so they can set government policy. And they want to do it behind closed doors, shielded from the view of the American public.

After implicitly admitting that she believes the only border to the breadth of campaign finance laws is when citizens print flyers at home and hand-distribute them (unequivocally stated by all of the Democrat commissioners this summer), Commissioner Weintraub claims her concern is with "multimillionaires and billionaires spending millions of dollars to influence elections." This, like much campaign "reform" rhetoric, sounds reasonable. But actions from various elections commissions—including Commissioner Weintraub's—tell a chillingly different story.

Last year, I wrote in the Federalist Society's Engage Journal about Bailey v. Maine Commission on Governmental Ethics. In 2010, Dennis Bailey spent about $90 to host an anonymous blog that criticized Eliot Cutler, a candidate for governor in Maine. His blog was reported to the state's election commission for failing to fill out the "disclosure" forms with the commission. Bailey was exposed, fined $200, and lost a lawsuit challenging the provisions in federal court. The Maine commission is not the FEC, but "disclosure" has certainly gone far beyond "multimillionaires and billionaires" at the state level and reaches speech that costs far less than "millions of dollars." It has, quite literally, reached the citizens who write blogs on their home computers.

The FEC does not lack for illustrative cases of its own. Commissioner Weintraub voted in 2012 to impose political committee ("PAC") status upon a small group here in Wyoming—Free Speech—which aimed to spend a maximum of $40,000 (likely closer to $10,000) criticizing candidates for federal office over various issues. These were three Wyomingites looking to raise some money to take out a few newspaper, radio and facebook ads, not "multimillionaires and billionaires" looking to spend "millions of dollars." Yet Commissioner Weintraub had no trouble imposing the most onerous and time-consuming form of "disclosure" the FEC can apply. Free Speech never spoke out.

Complying with disclosure is difficult enough; the only thing worse is the penalties for non-compliance. Here, Commissioner Weintraub's history shines, too. In 2009, she joined then-Commissioner Cynthia Bauerly in a statement of reasons lamenting that the Republican commissioners had voted not to approve a conciliation agreement with Arjinderpal Sekhon–a doctor in California who ran for Congress in 2006–ending the case with no penalty. Sekhon failed to "disclose." He did not fail to list names or contribution amounts in his reports to the FEC, but merely the employer and occupation (see this worthwhile tangent) of most of the individuals behind the 245 contributions to his committee (that totaled less than $200,000). As the Republicans commissioners' statement of reasons discusses, the FEC sought to fine Sekhon separately for every single failed disclosure on the list, instead of treating it as a single error. We still don't know exactly how much the FEC might have penalized Sekhon had Weintraub had her way (insert quip about "disclosure" here), but it was likely in the thousands of dollars.

Let's be really real here. "Multimillionaires and billionaires" are among the few who can afford to retain lawyers and accountants to comply with or circumvent (that is, creatively comply with) "disclosure" regulations. While claiming to represent the will of the people in her statement of reasons (an interesting position for an unelected bureaucrat), Commissioner Weintraub sits on a commission (now longer than any current commissioner) that for far too long has served as the speech police, strangling small groups like Free Speech in red tape, punishing grassroots candidates like Sekhon and drawing a road map for state commissions that want to go after bloggers like Bailey who spend next to no money at all.

"Reformers" can count Commissioner Weintraub as their staunch, unwavering ally in the disclosure debate. But for anyone claiming she's standing up for democracy, allow me to retort: save it for the tourists.