News Journal: Campaign finance: No laws, no rules, no ethics?

We now live in a country without any effective controls on campaign contributions.

In the mythically lawless American Wild West, at least there were sheriffs who tried to uphold whatever laws there were. We no longer have a sheriff.

The Federal Election Commission is the regulatory body that is supposed to enforce the rules about the way political money is raised and spent –those that is that were not gutted by the Supreme Court’s 5-4 Citizens United decision in 2010. But in an interview with The New York Times last month, Commission chair Ann M. Ravel said she “has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending. The likelihood of the laws being enforced is slim. I never want to give up, but I’m not under any illusions. People think the FEC is dysfunctional. It’s worse than dysfunctional.”

“Her unusually frank assessment,” the Times went on to say, “reflects a worsening stalemate among the agency’s six commissioners. They are perpetually locked in 3-to-3 ties along party lines on key votes because of a fundamental disagreement over the mandate of the commission.”

Even after Citizens United, there are restrictions on how who much anyone can contribute directly to a candidate’s campaign. But there are no restrictions at all on “independent expenditures,” defined by the FEC’s rule as “an expenditure for a communication which expressly advocates the election or defeat of a clearly identified candidate and which is made independently from the candidate’s campaign. To be considered independent, the communication may not be made with the cooperation, consultation or concert with, or at the request or suggestion of, any candidate or his/her authorized committees or a political party, or any of their agents.”

If ever there was a loophole large enough to drive a fully loaded Brinks armored car through, this is it. Given the gridlocked FEC, hardly any of the candidates are paying any attention to the “no consultation or coordination” proviso. The reality is that, by establishing super PACs supposedly outside their campaigns, they can and are taking unlimited contributions.

Jeb Bush has come up with an especially ingenious way to flout the rules. He has personally established a super PAC called “Right to Rise” with a self-set limit of $1,000,000 per contributor. The FEC limit for contributions to a federal political campaign is $2,600 per election, so you can see how this distorts the process. The Bush rationale for why it is legal to do this is because he is not yet a candidate for President. Don’t laugh.

“In the final weeks leading up to the launch” of his official candidacy, Politico recently reported, Bush’s “strategists have been devising a plan to allow both arms of the campaign – the official one and the super PAC – to work seamlessly, even as they will be legally barred from coordinating once he officially becomes a candidate.”

How you work seamlessly without coordinating is beyond me, but back in my day we had a functioning FEC and McCain-Feingold laws we took seriously.

Gov. Bush may be a bit more creative, but he is hardly the only candidate skirting the “independent expenditure” rule. Hillary Clinton has created a super PAC called “Correct the Record” that will act as a “communications war room.” It will post responses on the Internet and not use paid advertisements to get around the clear FEC restriction on coordination. But as Larry Noble of the Campaign Legal Center said, “The Internet exemption wasn’t meant for a political committee to raise unlimited money in coordination with a candidate. It was not intended to be this massive operation where you are outsourcing your rapid response team.”

Richard Hansen, a campaign finance expert who teaches at the University of California, Irvine, Law School, sums it all up quite well: “You see some of these things and you have to do a double take: things we thought were established as red lines are no longer red lines. It’s all a mess.”

Justice Anthony Kennedy, who cast the deciding vote in the Supreme Court’s Citizen’s United decision, said then, “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

If anyone thinks he was right and Professor Hansen is wrong, stay tuned until November 2016. We are in for a mess of a campaign beyond your wildest nightmares.

Ted Kaufman is former U.S. Senator from Delaware.