Published June 02, 2012
WASHINGTON – Is it "anything goes" now in America's campaign finance system?
John Edwards is acquitted of using campaign cash as hush money. There's an explosion of high-dollar super political action committees in the presidential race. It's all stoking criticism of revisions and regulatory loopholes in a system that was intended to keep better control of political money after Watergate.
Loosening the law has made it easier for politicians to butt up against the legal line — if not cross it — and for wealthy Americans to influence who wins office, from the White House on down.
All told, the immense amount of money in American campaigns, the cozy relationships between candidates and their financial backers — and now, too, a seeming lack of accountability for alleged rule-breakers — is fueling the public's long-standing distrust of its politicians and doubts about the credibility of the system.
"There's not much for voters to have faith in," says Trevor Potter, a former Federal Election Commission member and a proponent of campaign-finance reform. "We don't have much of a campaign-finance system at this stage, and we are wide open to the possibilities of corruption."
Spanning many weeks, the Edwards trial in North Carolina showcased what prosecutors said was a classic case of misusing campaign funds: Here was a former presidential candidate, they said, who channeled large sums of money from a deep-pocketed donor to cover up a love child and a mistress. But jurors acquitted Edwards, in part because the statute he was charged under required him to know he was breaking the law.
Jurors said the government didn't prove that. Said one, Sheila Lockwood: "I just felt that he didn't receive any of the money, so you can't really charge him for money that he got."
Campaign finance laws have changed remarkably since Edwards ran for the White House four years ago.
Had he been a candidate this year, and had his backers wanted to help him, they could have established a super PAC and donated unlimited amounts of money that could have been used in any number of ways. It's unclear if that still would have been legal for the uses in his case, although the super PACs have been able to take more risks than the campaigns they support. Super PACs are barred from coordinating with a candidate.
But it doesn't seem that clarity is coming anytime soon. The FEC can't agree on new regulations.
Take last December, when a Republican super PAC asked commissioners if it could "fully coordinate" with a Senate candidate. The commission deadlocked on a 3-3 vote after a heated discussion.
Michael Toner, a Washington lawyer and election law expert, said it would be a mistake to conclude that the failed prosecution of Edwards means that campaign finance violations will not be prosecuted.
"There's no question that there were relatively unique facts in the Edwards case," he said, and that there are other areas in campaign law where wrongdoing is clear cut — such as contributions from foreigners.
It's not just the FEC. A divided Congress has shown no appetite to take up the issue in earnest despite calls for an overhaul by Democrats after a series of federal court rulings — including the Supreme Court's Citizens United decision in 2010 — started to deregulate the system.
Political gridlock and regulatory ambiguity have paved the way for an unprecedented amount of spending from outside groups and special interests. Campaigns, political parties and super PACs supporting President Barack Obama and Republican presidential candidate Mitt Romney have raised more than $400 million apiece, figures that put the election on track to cost more than $1 billion.
Despite claims of independence, super PACs have incredibly close ties to the candidates they're working to help elect.
Restore Our Future, supporting Mitt Romney, shares office space with the same consultants who help Romney's own campaign. The groups insist there is a "firewall" — the workspaces are separated, they have said, by a conference room. A former White House spokesman, Bill Burton, runs the Priorities USA Action super PAC with its goal of helping Obama win a second term.
The fuzzy rules have super PACs pushing the limits. Many have nonprofit arms that legally don't have to disclose their donors. Some mega-donors — notably casino mogul Sheldon Adelson — have said they will be giving their money to these shelters to avoid public scrutiny.
"That's exactly what the laws we have are supposed to prevent," Potter said, "that one candidate for public office is not completely beholden to an individual and his interests."
We've been here before.
Congress began to change how Americans fund their elections in the mid-1970s after slush funds and cover-ups forced Richard Nixon's resignation.
"I believe that one of the crucial factors in determining whether or not we consider a government democratic is not how much power public officials have, but rather how public officials secure and retain their offices," Lawton Chiles told his colleagues on the Senate floor in April 1974.
Since then, there's been no shortage of instances of questionable relationships between politicians and the people who bankroll their candidacies.
On the Democratic side, hundreds of Obama's major backers have had repeated access to his top advisers or have attended glamorous state dinners. The White House has declined to offer complete details on those meetings. And on the Republican side, GOP super PACs have faced their own troubles in disclosing donors required under existing rules. Some major contributors have been listed in federal data with ambiguous addresses or shell corporations.
Situations like those have fueled voter distrust of both parties.
Republican Sen. John McCain, a major player in campaign-finance reform, has warned the current system is so influenced by wealthy donors that it will require "major scandals" before it is fixed. Conversely, anti-reform advocates have said campaign-finance deregulation is more faithful to free-speech protections afforded by the First Amendment.
One thing certain in an otherwise uncertain campaign finance landscape is that no changes are imminent. This will be the system at least through the November election.
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