One of the many dope things about being rich is how easy it is to spend money on influencing national elections without anyone knowing you’re doing it (which many rich donors really, really want to do). Politico reports this morning that super PACs spending money on the 2018 midterms are taking “brash new steps” to avoid disclosing who their donors are until after the election, with several groups avoiding disclosure before key primaries this year.
Some Super PACs are using their ability to simply tell the FEC they’ll report monthly rather than quarterly—they’re allowed to choose, for some reason—and in doing so push back the date of their first reports until after the primary.
Others, like a Democratic super PAC that supported Alabama Senator Doug Jones, are reporting their donors as loans from the organizations that make their ads. Still others “simply did not file required disclosures, a clear violation of the law,” according to Politico—showing just how low the risk in breaking the law is. One of these is an Ohio super PAC. From Politico:
Ohio First, which is registered in the state of Virginia but is spending in the Ohio Senate race, took another brazen step to conceal its funders: It disregarded a key filing deadline for weeks — further insulating its donors from discovery.
That could draw a $17,000 fine from the Federal Election Commission, but the FEC has not imposed such a fine on the group, nor has it acted aggressively to levy fines on other groups blatantly ignoring FEC rules.
A $17,000 fine is nothing to a big donor. If a donor is giving a couple million for ads, how hard is it for them to tack on an extra $17,000 to cover any potential FEC costs?
All these groups can ever say about their tactics is that they’re legal. This may or may not be true, but we largely never find out, because the FEC is so weakened by its Republican members and its slow pace that it is almost no threat to super PACs that really want to avoid disclosure. The agency often takes years to rule on complaints, by which time the election is long over; then, the fines are so paltry that they don’t discourage illegal behavior at all.
And it’s getting worse. Just look to this report from Covington & Burling, one of DC’s biggest law and lobbying firms, which was produced for those who want to spend money on elections (emphasis mine):
After three straight years of increasing enforcement activity, the FEC had its most active year in nearly a decade during fiscal year 2017. Between October 2016 to September 2017, the Commission obtained nearly $1.7 million in total penalties associated with close to 375 enforcement actions across the agency.
More recently, however, enforcement activity has flagged. Indeed, during the first six months of 2018, the FEC appears to have obtained just over $185,000 in total civil fines and penalties across all of its enforcement efforts. This apparent stall is particularly pronounced in the FEC’s resolution of matters under review (“MUR”). Indeed, after a lull of roughly six months, the agency recently collected its first civil fines in connection with a MUR in 2018. Absent one or more large penalties in the coming months, the Commission could be on pace for its least productive enforcement year since 2014, and its second-lowest penalty total in 20 years.
Even during one of its “most active” years ever, the agency only levied $1.7 million in fines in total spread across 375 enforcement actions, an average of $4,533 per violation. That’s pocket change for big donors; it would be pocket change for some at 100 times that amount.
It’s been laughably easy for years for big donors to avoid having their identities disclosed if they want to influence politics. If they don’t want to use any of these particular tricks, they can funnel money through an anonymous LLC incorporated in Delaware or Wyoming, or forgo the super PAC model entirely and give unlimited amounts to 501(c)(4)s, which are equally unmolested by the IRS.
Writing for the majority in Citizens United, scumbag former Supreme Court Justice Anthony Kennedy reassured us that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” He was wrong about that, but he was right in another way: Without knowing who the fuck is even giving to these super PACs, it’s hard to say in what way they’re corrupt, or to whom these candidates are indebted.
Still, the biggest problem with our campaign finance system isn’t the lack of disclosure but the ability of the wealthy to spend massive amounts at all. It’s good when voters are able to find out who’s spending money to influence them, but most won’t; it’s much more valuable to prevent millionaires and billionaires from using their wealth to influence elections in the first place.