Campaign-Finance Reformers Survey the Wreckage

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It's not clear what would get done in a lame-duck session, however — some Republicans may oppose bills out of principled objection to lame-duck legislating. So reformers may have to start over again on the Disclose Act in the next Congress. And that would be a tall order, given the certain influx of conservative Republicans who consider most campaign-finance regulation to be an infringement of free political speech. That bodes poorly for another plank in the reform agenda: the Fair Elections Act, which would provide federal campaign financing to candidates who are able to demonstrate a certain level of support from small-dollar donors, thereby helping candidates who aren't independently wealthy and don't have a network of deep-pocketed donors at, say, their former law firm. (Precious few conservatives believe that tax dollars should subsidize candidates in any way.)

Nor are reformers likely to find help from beyond the halls of Congress. The nation's official election cop, the Federal Election Commission, is paralyzed. With its six commissioners divided into three Democrats and three Republicans, it is hopelessly deadlocked. In one recent case, for instance, the FEC's professional staff recommended slapping a civil penalty for improper electioneering on the November Fund, a Chamber of Commerce–backed group that supported George W. Bush in 2004. But the FEC's Republican commissioners overruled their staff and let the November Fund off the hook on the grounds that the punishment was not based on a "coherent and sound legal theory."

Tax-exempt groups like American Crossroads are subject to oversight by the tax man. But the IRS shies from political frays whenever possible. (Imagine the fury of Obama critics if the IRS were to suddenly crack down on pro-GOP groups that helped bring down dozens of Democrats.) The same goes for the Department of Justice, which brings campaign-finance-related charges only in rare instances.

Still, reformers will not admit that the coming Republican wave is going to deep-freeze their agenda. "I don't accept the proposition that ... there's no chance for legislative action" in the next Congress, says Fred Wertheimer, a godfather of the campaign-finance-reform movement and founder of the group Democracy21. "In 1994 the Republicans blocked a lobbying and ethics bill in the closing days of the Congress, then they took control in 1995 and passed it as their own." Wertheimer notes that just one big-money scandal that outrages the public — think Watergate, or Enron's cash-fueled political connections — could suddenly change the terms of debate in Congress.

Wertheimer has higher aims anyway. "We need to overturn the Citizens United decision, which is one of the worst decisions in the history of the Supreme Court," he says. "And part of the reform movement will be to build the case that it needs to be overturned." But is that really possible? Some reformers are already eyeing Justice Anthony Kennedy, who seemed to expect more disclosure than we've seen when he sided with the majority in Citizens United. Getting the Supreme Court to reconsider its ruling anytime soon, however, seems a distant prospect, one that already beaten-down campaign-finance reformers shouldn't bet on.

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