Commissioner Shana M. Broussard of the Federal Election Commission (FEC) drilled journalists on the “The Federal Election Commission’s Role in Enforcing Campaign Finance Law”.
The Commissioner provided journalists with information on the FEC, how campaign finance plays a role in the U.S. elections, protecting integrity of the campaign finance process, “dark money” spending, disclosure, foreign influence, and other topics pertinent to campaign finance in the 2024 elections.
Commissioner Broussard began by highlighting that inJanuary, Open Secrets reported that the outside spending alone for super PACs and other groups already totaled $318 million, almost double the previous record of $162 million at the same point in the 2016 election cycle.
“It should be no surprise that election spending in 2024 is on pace again to set new records” pointed Broussard as she remarked that it was so far the most expensive election ever.
Based on FEC data, Open Secrets calculated that spending in the 2022 midterm elections set a record of nearly $9 billion compared to $7 billion in the 2018 midterm election. This followed record spending in the 2020 general election cycle which totaled nearly $14.4 billion, more than double 6.5 billion that was spent in the 2016 cycle.
Commissioner Broussard told journalists that collecting this information is a big job, “especially as campaign grows to exponential amounts”.
“It is critical to a well-functioning democracy that we know where that money comes from” Broussard emphasised.
She added that the press is an important part of the agency’s fundamental mission to promote transparency in elections.
While the FEC collects the data and publishes contributions and expenditure information, “it is the press that often makes that information accessible to the public. And the press articles are sometimes how complainants and enforcement matters first learn of potential violations of the law before bringing the issues to us,” said Commissioner Broussard.
By statute, they cannot investigate at the FEC unless four commissioners agree that there is reason to believe that a violation has occurred or will occur. They don’t have any investigative powers to interview witnesses or subpoena documents before that stage.
While the commission doesn’t rely only on press articles in coming to enforcement decisions, often times it is the press who essentially blows the whistle that there may have been a violation. Regardless, they look at the complaints and the responses, evaluate the law and facts and then come to their decisions.
As money spent on federal elections has exploded over the last two decades, spending has created enormous challenges to the regulation of campaign finance, particularly due to outdated laws and regulations.
Political advertising for instance has shifted from the traditional news sources such as television, radio, newspapers, to texting, online advertising, including through social media and streaming services.
Commissioner Broussard equally explained that their Reports Analysis Division receives that information, reviews the reports, and may send what is called a Request for Information for additional information to committees “if they notice something that looks like a mistake or a potential campaign finance violation. These requests are part of the public record. They are available on our website and they can sometimes be a source of information for your reporting” she told Journalists.
According to the Commissioner, all federal candidates, super PACs, and other groups’ spending money to influence elections must report their political activities. “For campaigns and PACs, that means reporting who is financing your organization as well as reporting how you’re spending your money. And anyone paying for independent expenditures, electioneering communications that reach a certain amount, have to file reports disclosing that activity” he said.
FEC’s challenges
One of the challenges that the FEC faces is the unprecedented use of dark money in elections. The Commissioner explained that the United States Supreme Court issued the decision in 2010 of Citizen United that invalidated FECA’s ban on corporate and union spending on independent expenditures.
The court she said, explained that the prohibition acted as a ban on free speech in violation of the First Amendment. Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
“But in the aftermath of Citizens United, the prediction regarding effective disclosure doesn’t appear to have come to fruition” said the Commissioner. “A significant amount of election-related spending is taking place in secret, especially on the internet, and massive super PACs – massive amounts of money are flowing from wealthy donors to corporations to super PACs and other corporate entities masquerading as nonprofits”.
The commission is frequently confronted with these issues involving whether and to what extent corporate and union spending to influence elections should be disclosed, including whether a 501(c)(4) group’s political spending rises to the level at which they have become a political committee and must file and report with the agency.
Another issue the commission struggled with was a deadlock as it needed four votes to exercise many of its powers, such as opening investigations, issuing advisory opinions, but they often deadlocked into three-three splits. The trend emerged over 15 years or so ago, and it received a lot of attention. However, in the last three years, the commission has worked harder towards the inevitability of reaching four votes to be successful, and Broussard believes that becomes a greater point of disclosure for the public.
As for the more day-to-day challenges that the commission faces in terms of their ability to accomplish their mission and to continue to perform their transparency roles, Broussard was concerned that their staffing and budget levels are not kept pace with the exponential growth in the volume of campaign finance.
They risk another backlog like their 2021 numbers if they cannot fill open vacancies. Their current total staff is approximately 285 people, compared to 2009, when they had 359 staff.
Proposed solutions
“I believe that the commission should do more to enforce and strengthen the disclosure laws to respond to online advertising in a world of rapid technological change,” suggested Commissioner Broussard.
In December of 2022, after 11 years of considering this matter, the commission published a final rule and an explanation and justification for revising the definition of public communication, and the requirement concerning disclaimers on certain public communications placed for a fee on the internet.
The regulation clarifies how the disclaimer requirements apply to internet public communications and allow for an adapted disclaimer to be used under specific circumstances.
The Commissioner also suggested that “Congress should act to close existing loopholes that allow political actors to run their ads online without having to disclose them to the commission, effectively concealing the source of the ads and the amounts spent on them”. FECA requires the disclosure of a certain category of communications called electioneering communications.
Electioneering communication is a communication that is broadcast on a cable or satellite communication that refers to a clearly identified federal candidate, it’s publicly distributed within 30 days of the primary or 60 days of the election, and it’s targeted to the relevant electorate.
Entities that run such communications must disclose them in filings with the FEC, but these requirements do not apply to online political ads. “A group can spend millions of dollars funding these political ads that feature federal candidates online without having to disclose them, even though they would have to do so if they ran those ads on television”.
“Proposed legislation such as the Honest Ads Act would extend these reporting requirements to online ads”. Commissioner Broussard believes that this legislation is necessary to ensure that there is proper disclosure of political spending in our current environment.
Achievements
Since 2022, the agency has returned to its rulemaking responsibilities. They finished final rules for the internet disclaimer public communications definitions, but last March they were able to complete a rulemaking.
On a micro level, it’s about opening up the possibility of running for federal office for the stay-at-home parent, disabled veteran, young American right out of school, hourly wage earners. On a macro level, it enables their democracy to become more perfect by creating opportunities for their federal elective bodies to reflect the current demographics of their nation. There are real disparate barriers to entry for many Americans to run for office. These barriers have a direct impact on diversity in their elected representatives.
Commissioner Shana M. Broussard
Commissioner Shana M. Broussard is one of six commissioners of the Federal Election Commission, all of whom are appointed by the President and confirmed by the Senate. By law, the commission cannot have more than three members from one party. Commissioner Broussard is a Democratic commissioner and currently serves with three Republicans and two other Democrats.
Broussard has worked at the commission since 2008, first as a staff attorney in the Enforcement Division, then as counsel to Commissioner Steve Walther, and then became a commissioner in December of 2020.
Enter Federal Electoral Commission (FEC)
The Federal Election Commission is the independent regulatory agency charged with administering and enforcing the federal campaign finance law.
The mission of the agency is strengthening democracy and protecting the integrity of the federal campaign finance process, one, by providing transparency to the public about the money that is used in federal elections; and, two, by fairly enforcing and administering our federal campaign finance laws.
The commission has exclusive jurisdiction over the civil enforcement of federal campaign finance laws. Separately, the Department of Justice handles criminal violations of the law.
The FEC’s responsibilities include collecting and disclosing campaign finance information like who is raising and spending money on elections, enforcing provisions of the federal election campaign finance act – FECA, the law governing campaign finance, and overseeing public funding of presidential elections.
The commission may issue regulations, advisory opinions, and policies and procedures all to guide the regulated community in complying with law, and it may fine persons or entities for violations of the law.
This article is from the Virtual Election Briefing Series for American and Foreign journalists organized by the Foreign Press Center ahead of the upcoming 2024 Presidential elections in the United States of America.