Some weeks ago, a number of individuals with different professional backgrounds and perspectives on campaign finance came together to urge the Federal Election Commission to take certain initiatives to improve the enforcement of the law.  (I was one of them.)  In a period of difficult, highly contested constitutional and legal questions, the FEC is in a difficult position, often charged with the perceived “sins” of others and itself divided  over regulatory direction.

But in this turbulent period, a key step for the agency is to define the available paths toward clear law, accessible and regularly updated guidance to those subject to the Act, and strengthened compliance and bipartisan enforcement. The signatories to the letter urged that the Commission consider revisions to “advance core regulatory purposes and policies in the public interest, such as the more effective implementation of well-established disclosure requirements.”

Today, in a further step, the same group has filed a Petition for Rulemaking, calling on the Commission to implement the statutory mandate to expand the Administrative Fines Program, address ambiguities, omissions and uncertainties in its guidance and reporting forms, and generally improve the enforcement of the disclosure provisions.  Once again, the signatories are unified in their view that this is a critically important function for the FEC to play, and that respect for the law and the prospects for successful compliance depend on sound administration of core statutory requirements.

The Wall Street Journal has little use for campaign finance rules, and it cannot surprise anyone with its complaint about state laws compelling political disclosure. But its reflexive suspicion of motives behind these laws, and ready, scornful dismissal of any need for them, does not mean that it is always wrong. A recent editorial questioning a state disclosure law, and praising a court for overturning it, is a case in point. The WSJ has this one right. The problem it identifies has cropped up around the country, and it is not helpful to the cause of reform to have the objective of disclosure defined by enactments like this.

When skeptics of compelled disclosure warn about the dangers of reprisal and harassment, the answer most often is that the Supreme Court has already addressed this contingency. Groups that can make a showing that they are uniquely vulnerable to harassment can apply for an exception. In this way the conversation drifts quickly to NAACP v. Alabama.

The skeptics, however, remain unpersuaded, and in a recent blog posting, Lyle Denniston points out that changes in politics may account for their discomfort. He refers specifically to the “deep polarization of the parties and the effect that has on coarsening the content of political expression.” He suggests that in this climate, the concern with donor privacy has broadened sufficiently that “privacy in political expression” now figures prominently in disclosure debates and requires a balance that the Supreme Court will be eventually called on to strike.

As the Denniston posting was published, a federal district court in Colorado entered an order in the latest phase of litigation over a state disclosure requirement modeled on the federal “electioneering communication” provision. This case serves as a good example of contemporary disclosure controversies, bringing out key disagreements over how disclosure laws should apply to smaller-scale issues speech.

The Washington Post sensibly suggests that campaign finance reform policy must be recast and that this a job for Congress. The paper’s perspective on the current state of affairs is bleak. Post editors are unhappy with the permissive rulings of the Supreme Court and about the expanded realm of what is often, usually imprecisely, referred to as "dark money." But their emphasis is on "new ways" to improve the law and its enforcement. They suggest a focus on transparency and they call on Republicans who will soon control the Congress to reconsider their reversal on disclosure policies.

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.