What is the state of the Federal Election Campaign Act today?

The FECA today remains much as the Supreme Court and Congress left it in 1976, at least on paper. The presidential public funding system is still on the books, but the last candidate to use it was Senator John McCain (R-AZ), in 2008. The FEC is still in operation, but partisan deadlocks have blocked it from acting on important matters. Candidates, parties, PACs, and groups making political expenditures are still required to disclose their donors, but this law too is less effective. Increasing amounts of money are now spent by officially non-political, tax-exempt groups regulated by the Internal Revenue Service, and they do not have to disclose their donors.

In the 2010 Citizens United v. FEC decision, the Supreme Court undermined the oldest reform, the Tillman Act. Citing Buckley's ruling that limiting political expenditures is unconstitutional, the court granted corporations the First Amendment right to make those expenditures. Three months later, in SpeechNow v. FEC, the federal circuit court for the District of Columbia struck down the limits on contributions to committees that only made expenditures. These two decisions opened the way for super PACs and for unlimited spending by tax-exempt groups, most of which are nonprofit corporations.

Public funding, contribution limits, and disclosure were intended to free candidates from relying on big donors and to let voters see who was financing election campaigns. The Supreme Court upheld the constitutionality of these provisions in Buckley, and they are still law. But big money is back, and it is easy to evade contribution limits and disclosure requirements. In terms of meeting its original goals, the FECA today is in tatters.

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