Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.

FEC Chair Ravel is not the first former or present Commissioner to turn to Comedy Central to lampoon her own agency.  Trevor Potter, once also a Chair, came to run a major reform organization that collaborated on bits of high comedy with Stephen Colbert. He even would emerge for his performance in a shower of dollars from something called the Mazda Scandal Booth. But he was out of the agency then and Ms. Ravel is still running it, and she decided that she had had enough of the FEC’s dysfunction and would play it for laughs. One of her colleagues was not amused.

Chair Ravel defended her appearance as free speech and as the only way now, all else having failed, to make her point. The problem for the FEC in any resort to high comedy is that the audience may misunderstand the joke. It is not a far cry from laughing at the agency to laughing at the law and concluding that politicians will never make or enforce rules against their own interest. The same ridicule can and has been directed at reform proposals.

The quips at the FEC’s expense depend on clever bits of exaggeration and oversimplification that, in the best humor, expose some measure of truth. The tricky part is keeping the exaggeration under control so that it does not overwhelm the routine and strike a false note. Does the audience come away both entertained and better informed, or at risk of being misled?

Sometimes those who disagree about campaign finance are almost deliberately talking past each other, dreading any concessions because, they think, to give an inch is to surrender a mile.  This seems increasingly the case in arguments about disclosure and a good example are the opposing reactions to the Supreme Court's recent decision to decline review of California's 501(c)(3) disclosure requirements upheld by the Ninth Circuit in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015).

Here is one fundamental difference: the belief on the part of decision proponents that it was a victory for campaign finance disclosure, and reply by critics that it had nothing to do with campaign finance at all.  And indeed, in technical terms, the case is not a campaign finance case – – it does not involve electoral activities, which 501(c)(3)'s may not conduct, and the information that the government is asking for is not in theory to be made available to the general public but only for the use of authorities for law enforcement.

To those who favor the State of California’s position, however, its significance goes well beyond its holding viewed in the most narrow terms.  If the case did not concern campaign finance, they seem to be saying, it was close enough: it involved a privately funded nonprofit advocacy organization, and a court willing to invalidate those disclosure rules might be tempted to export this critical attitude to the sphere of campaign finance.  There is a fear at work here that if a crack opens in disclosure requirements anywhere, they could expand to swallow up the campaign finance rules. On this theory, the court should be favorable to disclosure of political activity all kinds, to avoid damage down the line to rules of one particular kind.

The discussion of the parameters of compelled disclosure has become, in this sense, politicized.  Anxieties about the collapse of the campaign finance laws are gathering around all roughly similar disclosure requirements as a sort of last stand.  Rick Hasen has written that "campaign finance disclosure laws are under attack" and that much of the criticism has been "offered disingenuously with the intention to create a fully deregulated campaign finance system." Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 J.L.& Pol. 557, 559 (2012).  In his view, because the questioning of disclosure requirements is in many cases "pretextual”, id. at 559, this Court must be closely watched, because if it appears to move away from transparency in any case involving public advocacy, the end could be near. The Court could be poised to water down the disclosure commitment expressed in Citizens United.

Meanwhile, the important doctrinal question of how to measure the costs as well as the benefits of compelled disclosure is passing out of focus.  There is general acceptance that harassment is a cognizable injury threatened by disclosure of a nonprofit association's members and donors, and that in Buckley v. Valeo, 424 U.S, 1 (1976) and Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court provided a remedy through exemptions that can be granted in particular cases to endangered speakers.  But on the question of how this exemption should be structured or operate, the differences are wide.

Some of the Federal Election Commission’s work is simple, much of it hard, and it receives little credit for the difficulty it faces on major questions.  What is before the Commission tomorrow is among the simpler questions it faces: it is not glamorous, but because it involves independent expenditures and disclosure requirements, it is not insignificant.

The question is: how do reporting requirements apply to an independent expenditure made on a nationwide basis during the presidential primary season, clearly not intended to influence a particular state's primary?  The FEC has advised in the past that the cost should be divided among all states’ primaries that are pending, and the share attributed to each state should be reported as made to influence its primary.  FEC Advisory Opinion 2011-28 (2011).  This reporting procedure affects the legal obligations to report on a 24-or 48-hour basis independent expenditures made within specified periods before an election, and also the reporting of "electioneering communications."

Now the FEC is being asked to consider changing course, and to have the national expenditure reported as what it is – – a national expenditure.

Public Citizen has concluded that the Federal Election Commission is failing.  Its shortcomings are "dramatic and uncharacteristic", because they range across the entire field of their responsibilities in conducting audits; enforcing the law through investigations, settlements and lawsuits; and issuing regulations and advisory opinions.  The Public Citizen analysis is statistical and focuses on vote deadlocks.   The FEC is indeed disagreeing a great deal—about that, there is no doubt.  But is the agency failing or is the old regulatory model collapsing under the pressure of changing law and political practice?

Public Citizen cannot answer this question because it is looking at agency performance in the aggregate.  It is unable, for example, to explain what might be happening in particular cases, or why deadlocks are occurring across various agency functions.  There are certainly instances where the vote for enforcement is as suspect as a vote against it.  The result is still deadlock but the reasons for it are not quite what Public Citizen implies.  Nonetheless, it being assumed that matters could not have gotten this bad without dereliction of duty somewhere, the FEC takes the blame.  It is expected to take up the big issues, such as those involving "coordination" or "dark money", which are precisely the issues over which disagreement is certain to arise.  And so around and around it goes.

One alternative available to the FEC in this period of uncertainty is to commit itself to less controversial but highly productive functions.  Bipartisan suggestions have been made, for example, that it could do better in discharging its disclosure function, and in reforming, as Congress has directed, the operation of its Administrative Fines program. There is value in starting with these basic responsibilities.  To the Commission’s credit, it has initiated a rulemaking to move in this direction.

And on this question of disclosure, there is much to be done, more than suspected by many who hold the view that, for all the discord and disappointment, campaign finance law administration has performed well on public reporting.  Now we have some fresh scholarship by Jennifer Heerwig and Katherine Shaw that subjects this assumption to careful, critical examination.  Jennifer A. Heerwig and Katherine Shaw, Through a Glass Darkly: The Rhetoric and Reality of Campaign Finance Disclosure, Geo. L. J. 1443 (2014).