The lack of government regulation in the wake of the Citizens United decision has campaign-finance experts worried that outside groups will be spending like they never have before.
The Federal Election Commission (FEC) has been deadlocked on most attempts to create new regulations and hasn’t passed any new ones this year.
“Right now, we have frustration. These rules were written in a world prior to Citizens United,” former FEC general counsel Larry Noble, now with Skadden, Arps, Slate, Meagher & Flom, told The Hill.
David Mason, a former FEC commissioner and now a senior vice president at Aristotle, noted the absence of rules could embolden outside spending groups.
“The [lack of regulation] is going to make the aggressive players even more dominant. The people who are unwilling to take risks either won’t play or won’t play in a particular arena,” he said, adding that there could be unprecedented levels of spending.
The Citizens United decision lifted the limits on how much corporations and unions could spend on the election. As a result, last year’s election saw the rise of super-PACs — groups that took advantage of the ruling to raise millions of dollars, which they are expected to repeat this cycle.
The Hill reported earlier this month that those groups had spent at least $35 million already.
Former FEC Chairman Michael Toner, a partner at Wiley Rein, warned that some outside spending groups will do what they need to now and “ask for forgiveness later.”
“The bottom line is there is not going to be any new laws between now and the election,” Toner said. “What we’ve got is what we’ve got and that’s how the battle is going to be fought.”
The FEC declined to comment.
The 2010 election saw an unprecedented level of spending.
A report from the watchdog group Public Citizen estimated that outside groups spent almost $300 million in last year’s election — four times what they spent in 2006.
And that’s expected to increase in 2012. President Obama’s reelection team is said have a goal of raising $1 billion to combat those groups.
More regulation could be key, watchdog groups argue.
For now, when outside spending groups ask for clarification, they are asking the FEC for advisory opinions on what they can or can’t do.
Those are usually about a group’s specific situation and tend to answer narrow questions, not provide an overall roadmap.
Campaign Legal Center FEC Program Director and Associate Legal Counsel Paul Ryan noted that of the groups that ask for clarifications, they are looking to “deregulate current campaign finance laws,” not add boundaries.
And there isn’t a lot of optimism that will change before Election Day.
Noble said the likelihood of there being major changes during 2012 was slim.
“Unless there’s a real emergency,” changing the rules mid-election cycle is relatively taboo, he said.
“As the election goes on, there’s going to be a lot of pushback about them changing the rules in a way that’s more restrictive,” Noble explained.
The FEC has tried and failed several times over the past year to begin this rulemaking process, one campaign finance attorney, who request anonymity to speak candidly, told The Hill. It has voted three times on notice of proposed rulemakings to move forward as a regulation.
Only one proposed rule made it through, and that rule does not do much in the way of interpretation or enforcement, the attorney said.
“It strikes out rules that it already said two years ago weren’t going to be applying. [It’s] more of a housekeeping rul[e],” the attorney explained.
Democracy 21 President Fred Wertheimer blamed the commission for the holdup.
“We have an agency that is statutorily charged with implementing and enforcing campaign finance laws. The agency has been taken over by three Republican commissioners who have no interest in enforcing these laws because they don’t like them,” Wertheimer told The Hill, referring to the deadlocked commission, which is made up of three Republicans and three Democrats.
“As a result we have no way to get campaign finance laws enforced, except by criminal actions being brought by the Justice Department.”