If the law of diminishing returns applied to American politics, the resignation of the vice-chair of the Federal Election Commission (F.E.C.), Matthew Petersen, on Monday, would be a single data point on the downslope of democracy. The F.E.C. is the sole agency tasked with overseeing and enforcing campaign-finance laws, and Petersen’s departure leaves it without a quorum to levy fines, initiate investigations, or respond to foreign interference. It’s not that the door is now wide open to dark money influencing politics (it was already ajar); it’s that the door is now off of its hinges, taking with it the pretense of genuine campaign oversight.
Even when it did have a quorum, the F.E.C. was largely feckless. It had been limping along for more than two years without an inspector general (until one was appointed this month) or a permanent chief counsel. Since last year, only four of its six commissioner posts have been filled, thanks to a White House and Senate majority allergic to both regulation and campaign-finance reform. As of May, the F.E.C. had a backlog of nearly three hundred cases, some dating back to 2012, forty-five of which were on the cusp of a five-year statute of limitations that will toss them off the docket. This spring, the F.E.C. acknowledged, in a letter to the chair of the House Administration Committee, Representative Zoe Lofgren, a Democrat from California, that it had not penalized any illegal coördination between campaigns and outside political groups since the Supreme Court’s 2010 landmark ruling in Citizens United v. F.E.C. That decision essentially sanctioned the infusion of money of questionable provenance into the circulatory system of American politics. In the tug-of-war between lawfulness and corruption, a functioning F.E.C. has been losing, hand over fist, to the pull of anti-democratic forces for more than a decade.
It also stood by while foreign regimes used the Internet to undermine social cohesion, relying on the reach of Facebook and Google, in particular, to seed misleading, uncredited advertisements online. Between 2017 and 2018, as the F.E.C. debated requiring digital platforms to adhere to the same disclosure laws as political ads that are broadcast on television, the agency received more than three hundred and fourteen thousand public comments about digital-ad transparency. In a memorandum sent in June, Ellen Weintraub, the sole Democratic F.E.C. commissioner and its current chair, laid out amendments to the U.S. code that would bring digital ads in line with broadcast ads. Her recommendations went nowhere. Now that Petersen has resigned, unless the Trump Administration nominates new commissioners, and Senate Majority Leader Mitch McConnell allows them to be confirmed—and the new commissioners demonstrate more commitment to the public interest than their predecessors—the identities of digital-ad buyers will continue to be shielded by the F.E.C.’s inertia.
Campaigns have already spent more than forty million dollars on digital ads this year; by November, 2020, that number is expected to exceed two and a half billion dollars, leaving voters reliant on the social-media companies themselves to reveal who is footing the bill. Facebook, for example, now requires ads to state who paid for them, and limits ad buys to people holding identification issued by the American government. Even so, as the Guardian reported last month, “there’s nothing to stop foreign interests from hiring an ad buyer with a US ID, or using an affiliate company in the US. Facebook then protects its ad buyers by not divulging any personal information.” Another new Facebook rule, set to go into effect next month, will require buyers of “issue ads” (which advocate a particular position but are not necessarily attached to a particular candidate) to verify their identities. But, as the Washington Post’s Tony Romm has pointed out, “Facebook users who want to learn more about an unfamiliar-sounding group must rely on the government, which hasn’t updated its campaign-finance law in decades.”
Weintraub also tried and failed to enact rules to make it more difficult for foreign actors to hide campaign contributions behind shell companies, and for foreign companies with United States subsidiaries to use proxies to influence American politics. According to the Center for Responsive Politics, more than four thousand limited-liability companies made contributions to political groups in 2016, nearly four times as many as in the 2012 election: “Overall, direct spending in U.S. federal elections by groups that do not disclose their donors has exceeded $1 billion” since the Center began tracking dark money, in 2006. Meanwhile, in the past three years, the F.E.C. has voted three times on tightening foreign-contribution loopholes, and each time it was blocked by the Republican commissioners, who have also refused to accept the findings of the intelligence community that Russia interfered in the 2016 Presidential election. “At this point,” Weintraub wrote, in a memorandum from May, 2018, “I frankly don’t think they would be satisfied by anything short of an F.E.C. expenditure report personally signed by Vladimir Putin.”
The Republican commissioners’ unwillingness to protect American elections aligns perfectly with the inaction of the Senate Majority Leader, who is currently refusing to allow a vote on election-security legislation. As Amber Phillips explained, in the Washington Post, “McConnell said he won’t move the legislation forward because the federal government is already working with states to address election interference and that passing more legislation would be too heavy-handed, since states run their own elections.” In this regard, at least, the Constitution offers some cover. Article One, Section Four states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof”—words that, in 1789, ceded the administration of national elections to the states, where it has resided ever since. But this full-throated expression of the kind of limited government the framers were attempting to create, has, historically, been used to limit the franchise. This can be seen most recently in states that have passed draconian voter-I.D. laws to keep minority citizens off the voter rolls. It also explains why the federal government doesn’t require states to conduct post-election audits or mandate that they use voting machines that leave an audit trail. The federal government can send money to the states to buy new voting equipment, but it can’t tell them how to spend it.
Ceding elections to the states, and within the states to the counties, has left many municipalities without sufficient resources to replace aging, insecure voting systems. It has given anti-democratic groups like the Republican State Leadership Committee an opening to install secretaries of state across the country, like Kris Kobach, in Kansas, and Brian Kemp, in Georgia (where he has since been elected governor), who have made restricting voting rights a political objective. And since the Supreme Court’s 2013 decision in Shelby v. Holder, which removed crucial civil-rights provisions of the Voting Rights Acts, states can close polling places and engage in other activities that make voting more difficult for certain citizens, especially for people of color. The Court’s rationale, perhaps predictably, was that the 1965 law infringed on the sovereignty of the states.
The erosion of democratic norms, which predates Donald Trump and has been exponentially accelerated by his Administration, is incremental. It is also cumulative. Those who are eager to keep large numbers of Americans from voting, and who seek to undermine free and fair elections, have found ways to do it through the courts, through legislation, through dark money, through voter suppression and misinformation, and, as with the dismemberment of the F.E.C., through attrition. It’s no surprise that the engine of democracy is sputtering. How long before it breaks down?
