Federal Election Commissioner Caroline Hunter’s term expired on April 30. This wouldn’t be newsworthy except for one thing: It means that as of now, all the members of the agency that enforces the nation’s campaign laws—and is supposed to oversee the flood of money candidates and their allies spend—are working on borrowed time. President Obama hasn’t nominated anyone to succeed them. So the current commissioners are simply lingering in their expired seats. To say the FEC is broken is a parody of understatement. The agency’s structure—three Democratic commissioners and three Republicans, serving single six-year terms—means it often deadlocks along party lines. That’s what happened when it tried to update its own regulations in the aftermath of the 2010 Supreme Court decision in Citizens United, the case that helped open the door to unlimited political spending. The commission’s three Democrats wanted to consider tightening disclosure requirements; the Republicans insisted on reviewing only those rules that conflicted with the court’s ruling. That put the commissioners on the sidelines when spending by independent groups tripled to $1 billion in 2012, up from $300 million in 2008, according to the Center for Responsive Politics, a research group that tracks campaign spending.
The FEC’s inability to do its job has emboldened some groups to test legal boundaries, says former Senator Russ Feingold, a Wisconsin Democrat who introduced legislation to replace the FEC with a stronger regulator (it went nowhere). “This is about the core issue, the credibility of our elections,” Feingold says. “You have people willing to push the envelope because they know the FEC is a feckless institution.”
Many of the most influential political groups, including Karl Rove’s Crossroads GPS, the pro-Obama Priorities USA, and the U.S. Chamber of Commerce, didn’t report their donors to the FEC in the 2012 election. Americans for Prosperity, supported by conservative billionaire energy executives Charles and David Koch, spent $36 million on the 2012 elections, up from $340,752 in 2008, without disclosing its donors, according to the Center for Responsive Politics. The nonprofit arm of the group Patriot Majority USA spent $7 million to help elect Democrats, also without identifying the source of the money.
These groups argue that, because they’re nonprofits, the law doesn’t require them to reveal their contributors. Yet in Citizens United, the Supreme Court ruled the government can choose to mandate disclosure. It’s the FEC’s job to decide whether nonprofits spending money on political campaigns must identify donors. But the deadlocked commission can’t even get a majority to discuss the issue.