Commissioner Shana Broussard is one of the six bipartisan commissioners who lead the Federal Elections Commission, which is United States’ independent regulatory agency. Broussard, at a Washington Foreign Press Center’s briefing attended by United States Bureau Chief OLUKOREDE YISHAU, speaks on the commission’s role in campaign finance. Excerpts:
The commission and I
I am a commissioner on the Federal Election Commission. I am one of six commissioners, all of whom are appointed by the President and confirmed by the Senate. By law, the commission cannot have more than three members from one party. I am a Democratic commissioner and currently serve with three Republicans and two other Democrats.
I have worked at the commission since 2008, first as a staff attorney in the Enforcement Division, then as counsel to Commissioner Steve Walther, and then became a commissioner myself in December of 2020. So I have seen how the laws have developed and how the commission’s priorities and challenges have shifted over time, and I’d like to provide you with a brief overview of the workings of the agency.
So the Federal Election Commission, or the FEC as you’re going to hear me say it, is the federal agency in charge of regulating money in politics. The commission was created by Congress in the aftermath of the Watergate political scandal when Congress recognized that a properly functioning democracy requires a well-informed public and that citizens should know how money is used to influence elections and that they should be armed with that knowledge when they cast their vote in federal elections. The commission has exclusive jurisdiction over the civil enforcement of federal campaign finance laws. Separately, the Department of Justice handles criminal violations of the law.
As such, the FEC’s responsibilities include collecting and disclosing campaign finance information like who is raising and spending money on our elections, enforcing provisions of the federal election campaign finance act – FECA, as we like to say in our little world – the law governing campaign finance, and overseeing public funding of presidential elections. The commission may issue regulations, advisory opinions, and policies and procedures all to guide the regulated community in complying with law, and it may fine persons or entities for violations of the law.
I view our mission of the agency as strengthening our democracy and protecting the integrity of the federal campaign finance process, one, by providing transparency to the public about the money that is used in federal elections; and, two, by fairly enforcing and administering our federal campaign finance laws. One of those things that we’re important about with the agency is disclosure, and it is one of the most important tasks that we do is collect and report campaign finance data. And Myles is going to tell you a little bit about that more and show you that exactly on our website.
All federal candidates, super PACs, and other groups spending money to influence our elections must report their political activities. For campaigns and PACs, that means reporting who is financing your organization as well as reporting how you’re spending your money. And anyone paying for independent expenditures, electioneering communications that reach a certain amount, have to file reports disclosing that activity.
Analysis Division
Our Reports Analysis Division receives that information, reviews the reports, and may send what is called a Request for Information for additional information to committees if they notice something that looks like a mistake or a potential campaign finance violation. These requests are part of the public record. They are available on our website and they can sometimes be a source of information for your reporting.
All of this information, these requests, contribution information and spending information is all publicly posted on our website, as you’ll see. Groups like Open Secrets aggregate that information, but you can also go straight to the source on the commission’s website.
Collecting this information is a big job, and especially as campaign spending grows to exponential amounts. Based on FEC data, Open Secrets calculated that spending in the 2022 midterm elections set a record of nearly $9 billion compared to $7 billion in the 2018 midterm election. This followed record spending in the 2020 general election cycle which totaled nearly $14.4 billion, more than double 6.5 billion that was spent in the 2016 cycle. What I say is I think we see a pattern that’s happening here.
And making it far – by far the most expensive election ever. Per the post-election analysis by Open Secrets, the six most expensive races in the ’22 midterm elections were the Senate races in Georgia, Pennsylvania, Arizona, Wisconsin, Ohio, and Nevada. And looking back at the 2022 midterm elections, the projection of $10 billion on political advertising spending alone outpaced the total political spending in the 2018 midterms.
Election spending in 2024
It should be no surprise that election spending in 2024 is on pace again to set new records. In January, Open Secrets reported that the outside spending alone for super PACs and other groups already totaled $318 million, almost double the previous record of $162 million at the same point in the 2016 election cycle.
So this is what I say: It is critical to a well-functioning democracy that we know where that money comes from. Now, this is where it’s important for all of you, is the role of the press in this. The press is an important part of the agency’s fundamental – is important to the agency’s fundamental mission to promote transparency in elections. While we collect the data and publish contributions and expenditure information, it is the press that often makes that information accessible to the public. And the press articles are sometimes how complainants and enforcement matters first learn of potential violations of the law before bringing the issues to us.
For example, there are two enforcement matters specifically tied to the prohibition on foreign national spending in U.S. elections, and both resulted in civil penalties and a knowing and willful violation for one of these. These are not the kind of violations that we can uncover just by looking at contribution reports. In one matter, a watchdog group filed a complaint citing a New York Times article which reported that a Canadian citizen had participated in the decision to contribute. And in the second, reporters went undercover as fictitious foreign nationals allegedly interested in contributing 2 million to a PAC.
These cases highlight how vital it is that we have a healthy press reporting on potential violations. By statute, we cannot investigate at the FEC unless we have four commissioners agree that there is reason to believe that a violation has occurred or will occur. We don’t have any investigative powers to interview witnesses or subpoena documents before that stage.
Of course, we don’t rely only on press articles in coming to enforcement decisions. We look at the complaints and the responses, evaluate the law, evaluate the facts, and then come to our decisions. But oftentimes, it is the press – it is you – who is essentially – who essentially blows the whistle that there may have been a violation.
As money spent on federal elections has exploded over the last two decades, this spending has created enormous challenges to the regulation of campaign finance, particularly due to outdated laws and regulations. Beginning with Buckley v. Valeo, the Supreme Court has emphasized that federal campaign finance laws implicate core speech protected by the First Amendment, so I am always mindful of the unique relationship between federal campaign finance laws and the First Amendment and the careful balancing act that must occur in matters that come before me as a commissioner.
Since Buckley was decided over 45 years ago, advances in technology have changed the way in which modern campaigns and other political actors engage in election-related activity. For instance, political advertising has shifted from the so-called traditional news sources such as television, radio, newspapers, to texting, online advertising, including through social media and streaming services.
Without robust regulation, this can be, frankly, dangerous when we consider the widespread use of disinformation campaigns, such as the numerous instances reported in the 2016 election cycle. The decisive shift to online political advertising and the use of microtargeting in disinformation have made effective disclosure more important than ever. Not only does microtargeting make it easier for the misinformation to spread and for political spenders to sow division in our country, but political spenders can do so by concealing their – who they really are and who funded their ad spending. And by carrying out their social media campaigns in this manner, voters are deprived of the valuable information on who is speaking to influence and why, and this prevents effective counter-speech.
Enforcement and others
This is why I believe that the commission should do more to enforce and strengthen the disclosure laws to respond to online advertising in a world of rapid technological change. In December of 2022, after 11 years of considering this matter, the commission published a final rule and an explanation and justification for revising the definition of public communication, and the requirement concerning disclaimers on certain public communications placed for a fee on the internet. The regulation clarifies how the disclaimer requirements apply to internet public communications and allow for an adapted disclaimer to be used under specific circumstances.
In addition, Congress should act to close existing loopholes that allow political actors to run their ads online without having to disclose them to the commission, effectively concealing the source of the ads and the amounts spent on them. FECA requires the disclosure of a certain category of communications called electioneering communications. And election – and electioneering communication is a communication that is broadcast on a cable or satellite communication that refers to a clearly identified federal candidate, it’s publicly distributed within 30 days of the primary or 60 days of the election, and it’s targeted to the relevant electorate.
Entities that run such communications must disclose them in filings with the FEC, but these requirements do not apply to online political ads. In other words, a group can spend millions of dollars funding these political ads that feature federal candidates online without having to disclose them, even though they would have to do so if they ran those ads on television. Proposed legislation such as the Honest Ads Act would extend these reporting requirements to online ads. I believe that this legislation is necessary to ensure that proper disclosure of political spending in our – that there is proper disclosure of political spending in our current environment.
Dark money
Another challenge that we face at this agency is dark money. It’s the unprecedented use of dark money in our elections. As we all know, the United States Supreme Court issued the decision in 2010 of Citizen United that invalidated FECA’s ban on corporate and union spending on independent expenditures. This overturned decades of precedent. The court explained that the prohibition acted as a ban on free speech in violation of the First Amendment. At the same time, the court linked this holding to another holding in the opinion in which the eight justices – eight of the justices reaffirmed the constitutionality of the disclosure obligations. In the majority, Justice Kennedy explained that the court’s ruling would lead to a new campaign finance system that pairs corporate independent expenditures with effective disclosure. Transparency, the court explained, enables the electorate to make informed decisions and give proper weight to different speakers and messages.
Perhaps this is the theory in case. The more information that a voter has about who is contributing to candidates on a ballot and in what amounts or which super PACs are funding ads for or against candidates, the more democracy is enhanced. And that is how it should be. But in the aftermath of Citizens United, the prediction regarding effective disclosure doesn’t appear to have come to fruition. A significant amount of election-related spending is taking place in secret, especially on the internet, and massive super PACs – massive amounts of money are flowing from wealthy donors to corporations to super PACs and other corporate entities masquerading as nonprofits.
And the commission is frequently confronted with these issues involving whether and to what extent corporate and union spending to influence elections should be disclosed, including whether a 501(c)(4) group’s political spending rises to the level at which they have become a political committee and must file and report with our agency. And as you can imagine, contributors have very different views on what the FEC can and should do.
As you may be aware, the commission has previously struggled with deadlock. We need four votes to exercise many of our powers, such as opening investigations, issuing advisory opinions, but we often deadlock into three-three splits. The trend emerged over 15 years or so ago, and it received a lot of attention. However, I think as of recent, in the last three years, the commission has worked harder towards the inevitability of reaching four votes to be successful, and I think that becomes a greater point of disclosure for the public.
There was a news report in 2022 that reported that our attorneys have recommended finding reason to believe that a violation occurred in 24 separate matters involving the former president, and we did not move forward on one of those matters. Today, the record stands at 0 in 29 where staff has recommended moving forward but the commission has been unable to garner the four votes necessary. Meanwhile, courts are advancing in separate criminal trials, some of which are related to the recent enforcement matters that were previously considered by the commission, many of which I thought should have gone forward.
Challenges
As for the more day-to-day challenges that we face in the terms of our ability to accomplish our mission and to continue to perform our transparency roles, I am concerned that our staffing and budget levels are not kept pace with the exponential growth in the volume of campaign finance. We risk another backlog like our 2021 numbers if we cannot fill open vacancies. Our current total staff is approximately 285 people. Compare that to 2009, when we had 359 staff. We are looking at more and more spending, and we simply don’t have the staff that we need. And I would say that our budget is a large explanation for these figures. Regardless, we should be in a better position in terms of staff heading into the general election.
So while I’ve done all the doom and gloom, I have to say there is still some good news that I can tell you about. Since 2022, the agency has returned to its rulemaking responsibilities. I previously mentioned that we finished final rules for the internet disclaimer public communications definitions, but last March we were able to complete a rulemaking that is a personal passion of mine. This issue – the ability for candidates to use campaign funds for compensation while they’re campaigning – is very important. It has micro and macro implications.
On a micro level, it’s about opening up the possibility of running for federal office for the stay-at-home parent, the disabled veteran, the young American right out of school, hourly wage earners. On a macro level, it enables our democracy to become more perfect by creating opportunities for our federal elective bodies to reflect the current demographics of our nation. There are real disparate barriers to entry for many Americans to run for office. These barriers have a direct impact on diversity in our elected representatives.
Donating to Donald Trump to pay his legal fees
The theory that I would imagine comes behind that is that if a expenditure is tied to his status as a candidate or an officeholder, then there’s an argument that the fund is related to the campaign, and so you can use the money.
In the inverse, if it is not able to show that it would – if you can show that this expenditure for a legal proceeding would exist irrespective of their status as an officeholder, then there’s an argument can be made that it is personal use. But I – I imagine that a counsel could be looking at it, that these are all things that are tied to that individual’s campaign or previous status as an officeholder. So it becomes a question then that that could be a permissible use of campaign funds. But I don’t have any particular facts in front of me, so I don’t want it to make – seem that I’m making a conclusion regarding that.
Russian influence
The agency, the commission is very concerned about the influence of foreign money into our federal election system, which is why we have a complete – a statute and regulations say that it is prohibited for a foreign national to be able to make a direct or an indirect contribution. So we have had cases in the past where we have considered that situation and have proceeded with findings of reason to believe and negotiated civil penalties. But I think some of the point that you’re mentioning may be tied – and this is me speaking, solely me – is that we – oftentimes we’re concerned about dark money, what could be contributions that go to nonprofits, because a nonprofit does not have to disclose its donors, as opposed to an authorized committee that would have to disclose. So that is when it’s most important that we do have disclaimers that provide the information as who’s responsible for it. What you’re assessing is that there is a disconnect, I believe, between the disclosure that’s required for a nonprofit as opposed for an authorized committee. So there is that ongoing concern in the community.
