Host Simone Leeper speaks with former FEC Commissioner Ellen Weintraub, Senator Sheldon Whitehouse and CLC President Trevor Potter to examine how court rulings opened the door to unlimited political spending; how partisan gridlock has left the FEC unable to act; and what reforms could restore transparency and accountability in American democracy.
Record-breaking sums of money are pouring into American politics — from billionaires spending hundreds of millions to dark money groups hiding their donors. These sums have given wealthy interests outsized access and influence — while the Federal Election Commission (FEC), created to enforce campaign finance laws, has become unable to fulfill its mission.
In this episode, host Simone Leeper speaks with former FEC Commissioner Ellen Weintraub, Senator Sheldon Whitehouse and Campaign Legal Center President Trevor Potter. Together, they trace how court rulings like Buckley v. Valeo, Citizens United v. FEC and SpeechNOW v. FEC opened the floodgates to unlimited political spending — and explore reforms that could restore transparency, strengthen the Federal Election Commission and curb the outsized role of big money in our democracy.
Timestamps:
(00:01) — Why was an FEC commissioner suddenly removed?
(03:14) — How much money was spent in the 2024 election cycle?
(07:00) — What campaign finance lessons came out of Watergate?
(09:35) — What was the McCain-Feingold Act, and why did it matter?
(10:45) — How did Citizens United and SpeechNow change U.S. elections?
(13:41) — What is dark money and why is it dangerous?
(15:18) — Why has the FEC failed to enforce campaign finance laws?
(21:48) — How did Elon Musk become the biggest mega-donor in U.S. history?
(24:14) — What government power did Musk gain after funding Trump?
(30:03) — How has campaign finance evolved since Watergate?
(33:41) — What reforms could reduce dark money and strengthen transparency?
(40:57) — What must Congress do now to curb big money in politics?
Host and Guests:
Simone Leeper litigates a wide range of redistricting-related cases at Campaign Legal Center, challenging gerrymanders and advocating for election systems that guarantee all voters an equal opportunity to influence our democracy. Prior to arriving at CLC, Simone was a law clerk in the office of Senator Ed Markey and at the Library of Congress, Office of General Counsel. She received her J.D. cum laude from Georgetown University Law Center in 2019 and a bachelor’s degree in political science from Columbia University in 2016.
Ellen L. Weintraub served as Commissioner and four-time Chair of the U.S. Federal Election Commission from 2002 to 2025. There, she advocated for meaningful campaign-finance law enforcement and robust disclosure and strove to combat "dark money" and foreign influence in our elections. She has been a critic of the system that gives disproportionate influence to billionaire donors and has refuted unfounded claims of voter fraud. On February 6, 2025, she was informed that the President was removing her from office.
A graduate of Yale College and Harvard Law School, Weintraub has published articles in The New York Times, The Washington Post and leading law reviews and is a frequent speaker on news shows and at conferences at home and abroad. Previously, she practiced law at Perkins Coie LLP and was Counsel to the U.S. House of Representatives Ethics Committee.
Sheldon Whitehouse represents Rhode Island in the U.S. Senate. Senator Whitehouse serves as a senior member of the Judiciary Committee and the Ranking Member of the Senate Judiciary Courts Subcommittee.
Trevor Potter is President of the nonpartisan Campaign Legal Center. A Republican former Chairman of the Federal Election Commission (FEC), Trevor was general counsel to John McCain’s 2000 and 2008 presidential campaigns and an adviser to the drafters of the McCain-Feingold campaign finance law. To many, he is perhaps best known for his recurring appearances on The Colbert Report as the lawyer for Stephen Colbert’s super PAC, Americans for a Better Tomorrow, Tomorrow, during the 2012 election, a program that won a Peabody Award for excellence in reporting on money in politics.
The American Bar Association Journal has described Trevor as “hands-down one of the top lawyers in the country on the delicate intersection of politics, law and money.” He has provided testimony and written statements to Congress on federal election proposals, campaign finance regulation and, recently, the effects of the January 6th attack on our democracy. During the 2020 election season, Trevor was named to the cross-partisan National Task Force on Election Crises.
Links:
Democracy Decoded: Season 1, Episode 4 – CLC
How Does the Citizens United Decision Still Affect Us in 2025? – CLC
Dark Money Groups Are Pumping Millions Into the 2024 Election – CLC
Elon Musk Stands to Gain Even More Wealth by Serving in Trump’s Administration – CLC
New CLC Report Examines FEC’s Role in Letting Big Money Dominate Elections – CLC
From Dysfunctional to Destructive (FEC Report) – CLC
The Impact of Big Money and Secret Spending on Trump’s Second Inauguration – CLC
Have Wealthy Donors Bought the Trump Administration? – CLC
CLC Steps Up to Promote Enforcement of Federal Campaign Finance Law (Case Page) – CLC
Defending Federal Limits on Corporate Spending in Elections (Citizens United v. FEC - Case Page) – CLC
Campaign Legal Center Releases New Report on the FEC’s Deregulatory Trend – CLC
The Agency That’s Supposed To Provide Election Oversight Badly Needs Oversight – CLC
Campaign Legal Center Letter Responds to President Trump’s Unlawful Attempt to Exert Control Over the FEC – CLC
About CLC:
Democracy Decoded is a production of Campaign Legal Center, a nonpartisan nonprofit organization dedicated to solving the wide range of challenges facing American democracy. Campaign Legal Center fights for every American’s freedom to vote and participate meaningfully in the democratic process. Learn more about us.
Democracy Decoded is part of The Democracy Group, a network of podcasts that examines what’s broken in our democracy and how we can work together to fix it.
Ellen Weintraub: On February 6th, I received an email attaching a letter signed by the President that was two sentences, " You are hereby removed as a member of the Federal Election Commission, effective immediately. Thank you for your service on the commission."
Simone Leeper: The voice you're hearing belongs to Ellen Weintraub. From 2002 onward, she served as a commissioner on the Federal Election Commission, most recently as chair. The FEC is the only government agency whose sole responsibility is overseeing the role of money in federal elections.
Ellen Weintraub: My term had expired and I was serving in a holdover capacity, so I was eligible to be replaced. There's a process for doing this, there's a legal way of doing this.
Simone Leeper: Former Commissioner Weintraub is among the typically low- profile people who work in the background to ensure American elections run by the book. She contends that by ordering her off the job without nominating a replacement, President Donald Trump overstepped the law. When she spoke with us, the FEC was down not one, not two, but three commissioners out of the six it should have. In order to be able to take any substantive action, the commission needs a quorum of at least four commissioners.
Ellen Weintraub: No one is irreplaceable, and I certainly don't think that I am, but I can't be replaced by nothing. There is a need to have enough commissioners for the commission to do its business so that other people can rise up and take on the work. The Federal Election Campaign Act states that commissioners may serve till the end of their term or until they are replaced by another commissioner, who is nominated by the president and confirmed by the Senate. Congress anticipated that maybe politicians wouldn't like being regulated and might just let the FEC go out of business by the simple expedient of not nominating new commissioners at the end of somebody's term, so they built in this protection that commissioners, once confirmed, could continue to serve until they got replaced.
Simone Leeper: The opening months of Trump's second term in office saw a great number of firings, like former Commissioner Weintraub's. Since retaking the presidency, Trump has probed the limits of the office, daring the courts and Congress to push back. In one sense, former Commissioner Weintraub's story is just one among many. But the FEC has a unique mission, one that is acutely important to the health of our democracy. Its failure to fulfill that mission is alarming to those who work in campaign finance law. The United States has long struggled to contain the rising influence of wealthy donors and special interests. Year- after- year, election- after- election, the risks only seem to be increasing.
Ellen Weintraub: The FEC is an unusual agency, where the very people who are being regulated by the agency get to nominate and propose who's going to be the regulators. In 2026, I think we need to worry about whether we will have an FEC, will there be a cop on the beat?
Simone Leeper: A de- fanged FEC is only one part of this problem. In 2024, campaign spending was the highest it's ever been. The two presidential campaigns, plus congressional campaigns around the country, burned through more than $ 15 billion. Anonymous wealthy donors spent billions more, and one billionaire in particular spent so quickly and so publicly, it dizzied campaign finance experts. I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable and inclusive democracy. I work for a non- partisan organization called Campaign Legal Center, dedicated to solving the wide range of challenges facing American democracy. This season, on Democracy Decoded, we are focusing on acute threats to our system of government. Safeguards at the core of our democracy are being challenged or ignored, threatening our very form of governance. In so many cases, you can trace those threats to a single root cause, the subject of this episode, big money in politics.
Sheldon Whitehouse: Money's always played an outsized role in politics, all the way back to the famous phrase, money is the mother's milk of politics.
Simone Leeper: This is Sheldon Whitehouse, a senator from Rhode Island, now in his fourth term. He has long advocated for improvements to our campaign finance laws, particularly by making political donations more public to thwart anonymous spending.
Sheldon Whitehouse: The solution to that was that we developed, really starting back with Teddy Roosevelt, a whole series of laws that tried to diminish and contain the role of money in politics.
Trevor Potter: The point of a democracy is that people elect their representatives, the power belongs to the citizens and voters, and every voter has one vote.
Simone Leeper: And this is Trevor Potter. Trevor is the founder and president of Campaign Legal Center. Trevor spent five years as an FEC commissioner in the 1990s before founding Campaign Legal Center. Like Ellen Weintraub, he too served as chairman of the Federal Election Commission. He was also general counsel to John McCain's 2000 and 2008 presidential campaigns.
Trevor Potter: What money does is bring in the possibility that some people will have much more power than others because they will effectively be able to control the speech that people are hearing, so much so that they're maybe the dominant person who is being heard by all the other voters, and the voices of the other voters gets drowned out because they don't have the money to communicate with all the other voters. So you have a system where there's a tension between one person, one vote, and the fact that speech can be paid for and may totally dominate the election.
Simone Leeper: Trevor is among just 35 people ever to serve as a commissioner at the agency, which was created by Congress in the wake of Watergate.
Trevor Potter: The Watergate scandal was in part the fact that Richard Nixon, as a presidential candidate, was meeting with corporate executives and talking with them about government policy, and they were making contributions to his campaign.
Simone Leeper: Nixon's corruption focused the nation's attention on the need to corral political spending. Congress made bold moves that the Supreme Court has been eroding in pieces and chunks for the past 50 years.
Trevor Potter: Congress, back in the 1970s, established spending limits in elections on the theory, which made a lot of sense, that we didn't want candidates and incumbent members of Congress spending all their time fundraising, and we didn't want wealthy individuals to be able to buy so much speech that they were effectively buying the election. So Congress said, " We want to have a level playing field where all candidates spend up to the same amount of money." That's something that many democracies do. But our Supreme Court said that our First Amendment right to free speech did not allow the government to level the playing field and to say everyone should spend the same amount, that that was not a valid use of government power to regulate speech.
Simone Leeper: You can see the genuine tension here. The American public has a right to discuss politics and to support candidates for office, that's protected speech. And yet, to amplify speech, most people and groups need to spend money. Instantly, spending and speech get intertwined so that any limit on spending on politics can be treated as a limit on speech. Yet, without spending limits, only those who spend big get to speak and be heard. In the 1976 case Buckley v. Valeo, the Supreme Court determined that Congress couldn't cap candidates' spending on their own campaigns. That set back the cause of assigning limits to campaign spending. However, in 2002, there was a breakthrough when bipartisan campaign finance legislation was passed. Trevor actually had a hand in helping the law to get through Congress in his former role working for Senator John McCain.
Trevor Potter: The last time Congress was able to pass campaign finance legislation was now over 20 years ago, the McCain- Feingold- Shays- Meehan Law Bipartisan Campaign Reform Act as it was known. That was a multi- year struggle to prevent corporate money from being spent in politics, and to force candidates and parties to rely on individual funding rather than the corporate funding that they had increasingly been taking and spending. That legislation was ultimately, some 10 years later, partially declared unconstitutional by the Supreme Court, which said that corporations had a First Amendment right of their own as corporations, not individuals, to spend money in federal elections.
Simone Leeper: Here's how Senator Sheldon Whitehouse describes it.
Sheldon Whitehouse: Corporate interests were able to convince the Supreme Court that there was a constitutional right to spend unlimited amounts of money in politics.
Simone Leeper: The balance between unlimited spending on politics and everyday American's right to a voice in their democracy tilted fully towards spending when the Supreme Court determined in the 2010 case, Citizens United v. FEC, that groups such as non- profits, unions and corporations had essentially a constitutionally- protected right to engage in political speech. That meant, in effect, that they also had the right to unlimited spending on elections. Soon after the Citizens United decision, another court ruling, SpeechNOW v. FEC, went even further. It found that the government, quote, " Has no anti- corruption interest in limiting what people give to political spending groups called political action committees, or PACs." That decision cleared the way for so- called Super PACs to pool enormous amounts of political donations, so long as they spend that money independently of campaigns or parties.
Trevor Potter: But if it's $ 100 million and it visibly changes the election so the candidate is indebted to this independent spender, why is that not corrupting? Why won't that candidate feel indebted?
Simone Leeper: Trevor Potter again.
Trevor Potter: Why won't that candidate be afraid that if they do something the spender doesn't like in government, that the spender won't be there next time for their $ 100 million, or worse, will support their opponent instead with $ 100 million? Isn't that the sort of corruption that occurs even with so- called independent spending?
Sheldon Whitehouse: The whole set- up around this being independent is completely false.
Simone Leeper: Senator Sheldon Whitehouse again.
Sheldon Whitehouse: And what's really disturbing is that there's been enough evidence of this for the Supreme Court to know it. In fact, John McCain and I wrote a brief to the Supreme Court after Citizens United saying, " Hey, guys, you blew it. This is not independent and here's all the evidence." The other condition is it had to be transparent. Dark money is a term that refers to significant amounts of legal spending that comes into politics secretly, anonymously, so the public, the voters, don't know who is behind the message that's being delivered to them. We've had billions of dark money flow in, billions of dollars of proof that the Citizens United decision was wrongly decided, and yet they insist on sticking to their guns as if this was independent and as if this was transparent, and it's just factually false, it just isn't true.
Simone Leeper: It's a system with a lot of holes and a lot of negative consequences for voters. When corporations have the right to unlimited political spending, it effectively drowns out the voices of everyday Americans.
Trevor Potter: The founders' concept was that the people who were elected were going to represent their voters.
Simone Leeper: Trevor Potter again.
Trevor Potter: The risk we have is that the people who are elected are the result of speech from people totally outside the district, interests outside the district, and so the election may effectively be fought between special interests elsewhere in the country and the battleground is your district. And we see that increasingly in state- wide races, and often in congressional races, where the dominant spenders are people who do not live in the state or the district, or are secret sources of money and we don't even know who they are.
Sheldon Whitehouse: Nobody says you shouldn't be allowed to make a $ 100 contribution to a political candidate. What we're saying only is, once your contribution gets to a certain size, we should know who you are. And that becomes particularly true when the contribution goes up into the millions of dollars and likely becomes potentially outcome- determinative in a race, and certainly something that's going to affect the judgment of the candidate about the issue over which the contribution was made.
Simone Leeper: This brings us back to the Federal Election Commission. It's an independent agency with the authority to write rules for spending. It should protect American democracy against wealthy donors who would seek to buy candidates or parties. But both Trevor Potter and Ellen Weintraub, who worked on the commission, and Senator Whitehouse, whose campaigns have to conform to FEC rules, have their doubts about the agency's ability to meet its mission. Back to Trevor Potter.
Trevor Potter: The Federal Election Commission is the entity established by law, by Congress, after the Watergate scandals, to do a couple of things, to be the place where all money spent in federal elections is disclosed, so that anyone can go now and look at their website and see, with a couple of clicks, who is giving to a candidate, how they're spending their money, where the money is coming from to go to party committees, or to PACs or Super PACs, these large outside spending groups. In theory, its job is to make money spent in federal elections fully transparent. Then its other job is to police the limits on contributions.
Ellen Weintraub: The FEC is a creature of its commissioners and is only as good as the people who are on it at the time.
Simone Leeper: Ellen Weintraub once again.
Ellen Weintraub: It goes through different periods depending on who's on it. When I started, I think there was a pretty cooperative group of commissioners who wanted to try and work across the aisle and form compromises to interpret the new campaign finance laws under the McCain- Feingold Law. There have been changes over time. We went through a period of time when commissioners were very dug in on party lines and it was very hard to get four votes, which is what you need to get anything done at the FEC, it was very hard to get four votes to enforce the law.
Simone Leeper: Trevor Potter.
Trevor Potter: When I arrived at the commission as a commissioner, there were three Democrats, three Republicans. The goal, I think, of all commissioners was to resolve matters in a non- partisan basis and to be effective. We worked together on a cooperative basis to do that. There would be arguments and you could see sometimes that some of the more partisan commissioners wanted to, as it were, protect someone from their party, but they respected the law and their goal was to make sure it was applied equally to all sides. What has changed? The commission now, for really the last 15 years, has been in partisan deadlock. What happened was that a number of commissioners resigned, it lost its quorum, it had to get new commissioners, and the Republicans who were appointed, selected by Mitch McConnell, who was an opponent of the commission and I think had been pretty clear he would prefer it did nothing, those commissioners proceeded, and their successors since then, to effectively deadlock the commission.
Simone Leeper: Ellen Weintraub's read on the FEC's struggles is similar to Trevor's, a body that was designed to have equal numbers of Democrats and Republicans on it is vulnerable when those two factions disagree on how to police campaign spending.
Ellen Weintraub: I do think this is very unfortunate, but campaign finance reform has really become a very partisan issue. It wasn't always that way, and particularly the issue of disclosure was not always considered to be anathema to one party, but it really has become that way.
Sheldon Whitehouse: The tool of dark money becomes essential. Dark money is the cardinal sin that makes all the other lesser sins achieved through dark money possible.
Simone Leeper: Senator Whitehouse says the lack of transparency has become self- reinforcing.
Sheldon Whitehouse: So once it's in, those who benefit the most from dark money will fight to the death to protect it. So we have this bizarre situation in which north of 80% of Democrats and Republicans in polls want to get rid of dark money. It's an epic test case in democracy failing under the pressure of dark money, with the goal here being the protection of the dark money itself.
Simone Leeper: In Senator Whitehouse's read, the extent of dark money expenditures don't even capture the real threat. Dark money, that is political spending for which the true source is undisclosed, totaled nearly $ 2 billion in the 2024 election cycle. But that number doesn't include the money that big donors could credibly threaten to spend. The mere ability to spend such huge amounts can be weaponized to bully lawmakers.
Sheldon Whitehouse: There is nothing that prevents the dark money interest from going to the candidate and saying, " You know what I can do? I can drop $ 20 million against you. If you're my enemy on climate change, if you're my enemy on crypto, if you're my enemy on Wall Street regulation, I'm going to spend that kind of money against you and you'll never even know it's me. It's going to come from the Association for Peace and Puppies and Prosperity." And then, the candidate changes their behavior because of that threat, and nobody ever sees that, because no dark money was ever spent. So it is actually worse in its effect on Congress than people understand. And at least if a big dark money spend gets made, investigative reporters can scratch around, and maybe two or three years later, you can figure out something about who spent it. But that private meeting with the emissary from the dark money interest to the candidate or the chief of staff or the candidate's campaign manager saying, " Get right on this issue or we're going to crush you," nobody will ever, ever, ever, ever, ever see that, that leaves no shadow, and that is deeply, deeply dangerous.
Elon Musk: President Trump must win to preserve the Constitution, he must win to preserve democracy in America.
Simone Leeper: If you recall the final sprint to Election Day 2024, there were three names you could not possibly avoid, Kamala Harris, Donald Trump, and...
Presenter: The world's richest man, Elon Musk, is now a powerful mega donor for Donald Trump.
Elon Musk: America's not just going to be great, America is going to reach heights that it has never seen before. The future is going to be amazing.
Simone Leeper: Elon Musk, the world's richest man, give or take, it's impossible to know with real certainty. It's also anyone's guess exactly how much money he, a single individual donor, poured into the election. After all, when you're talking nine figure sums, what's $ 1 million here or there?
Trevor Potter: Elon Musk is an extraordinary situation, meaning we haven't seen anything like it in the last 50 years.
Simone Leeper: Trevor Potter.
Trevor Potter: He spent $ 200 million or so in cash to elect Donald Trump, spending most of it in key states like Pennsylvania and Wisconsin.
Simone Leeper: FEC filings from early 2025 pegged Musk spending north of $ 290 million. He scattered that across several PACs that supported Republican candidates and wrote checks to state Republican committees. But the lion's share went to America PAC, his own Super PAC that put more than $ 200 million toward getting Donald Trump elected.
Trevor Potter: No individual has ever spent that kind of money to elect a federal candidate before, and he did so in actual coordination with the Trump campaign.
Sheldon Whitehouse: He was able to basically buy himself to center stage in the United States of America, and then was rewarded by Trump for his massive political spending.
Simone Leeper: Senator Sheldon Whitehouse again. The reward he's referring to was Trump installing Musk as the head of a newly invented body, named the Department of Government Efficiency, or DOGE, after a crypto coin Musk likes. Through DOGE, Musk's handpicked team got access to sensitive government data and had the latitude to fire, or at least harass, millions of federal government employees.
Sheldon Whitehouse: And he was rewarded by being given this imaginary unknown position in government, where he's allowed to go in and wreck government agencies, that did a lot of damage.
Trevor Potter: So we have seen, in this one person, the culmination of 50 years of evolution in federal campaign activity, from strictly limited contributions, no corporate money, independent spending only in relatively small amounts with zero coordination with a campaign, to the other end, which we saw this past year, of the largest amount ever spent by an individual in close coordination with the campaign, and resulting in that individual controlling chunks of the federal government after the election.
Simone Leeper: Musk's case is astonishing for the amount of money he spent and the access Trump gave him in the White House, but it's also a watershed for how openly Musk joined with the Trump campaign, even appearing at rallies with the candidate. It upended a lot of assumptions about huge donors preferring to remain silent partners for politicians.
Trevor Potter: What happened after Citizens United is that corporations didn't want to speak in their own name and put their name on the ad. And so, the question was, as long as the spending is independent of candidates, could they give money to PACs, political action committees, in unlimited amounts? The lower courts ended up agreeing with that and saying that if they could spend it on their own without limits, they could give unlimited contributions to what was colloquially called a Super PAC, a non- connected non- candidate PAC, that would report to the Federal Election Commission and show its donors, but the donors would now have the ability to give unlimited amounts. We saw the development suddenly of political organizations that were not party committees, were not candidates, and had truly vast sums of money, not just from corporations, but from wealthy individuals. And I think what happened was once that money could be effectively washed through an outside entity so that the individual or corporate name wasn't on the ad, but instead, it said something like, " Paid for by a Better America Tomorrow," once that happened, individuals and corporations were much more willing to open their wallets.
Sheldon Whitehouse: So we went from the stage where politics really listened to voters and to parties, to where politics listened to voters and parties somewhat, but really started listening to dark money under the covers and behind the scenes. And now, we're in this celebrity hyper- billionaire mode, where somebody can jump in and spend really just unlimited amounts of money.
Trevor Potter: Now, I've noted that coordination is not supposed to happen. Here, we had the Federal Election Commission say that the prohibition on coordination did not include talking with a campaign about get out the vote activities, door knocking.
Simone Leeper: This is important in the Musk case. He financed a legion of door knockers. He also put up a $ 1 million a day prize for voters in swing states.
Trevor Potter: What the FEC said was, " No, the ban on coordination only talks about paid advertising, not all the other activities that a campaign engages in." And with that green light from the FEC, Musk was able to go out and spend all of this money, while talking to the Trump campaign every hour about where they needed it, sharing information, getting lists of voters that the campaign wanted Musk's people to contact, telling the campaign how those contacts went and where the campaign should be spending money to reach out to voters. We have a situation with a historic amount of money being spent, virtually as if it was part of the campaign, and all of that is contrary to the Supreme Court's theories that independent spending would be truly independent, and therefore non- corrupting. And again, this is not just any wealthy person, this is the single wealthiest person in the world, according to all estimates, with a lot of business before the US government, getting wealthy off US government contracts, being able to claim credit for electing a president in two key states, and then being asked by the President to run part of the government in ways that ended up benefiting his companies.
Simone Leeper: It's worth taking a second to reflect on how things have progressed over the past 50 years. The first major congressional efforts to cap campaign spending stemmed from the Watergate scandal, and concerned amounts that seem quaint by today's standards.
Trevor Potter: Corporate contributions were illegal at the time, but that was effectively small potatoes. We were talking about hundreds of thousands of dollars of illegal corporate money. The largest single donor to the Nixon campaign gave $ 1 million, and everyone was so shocked that Nixon was unable to appoint him as an ambassador because it would've looked as if it was a quid pro quo that he had bought his ambassadorship. That world is gone. What we're seeing instead by the Trump campaign as he was running was actively courting corporate executives, corporate money individuals, and saying, " You need to give me $ 1 billion to elect me because I'm going to be good for your industry," which is what allegedly he said to oil executives. There's a very direct appeal to wealthy individuals to elect Trump in order for him to benefit their business interests. And what we've seen after the election is those individuals becoming cabinet secretaries, other government officials. This is the wealthiest administration we have ever seen.
Simone Leeper: The political will to untangle spending from political speech has been strong for generations. Congress exerted it in the 1970s, and then came together again in the early 2000s to impose spending limits. The question now is, can both major parties make campaign finance reform a priority when they both depend on big donors?
Trevor Potter: In 2002, McCain- Feingold was bipartisan because John McCain was a Republican, it only passed the House and the Senate with Republican support. I think both parties have found themselves increasingly dependent on these large funders, whether they're corporations or billionaires, and they haven't wanted to cut off that funding. It pays for their advertising, their consultants, it pays for these now billions of dollars in outside ads that both parties have come to rely on.
Simone Leeper: So where to start unraveling all this spending? Over the years, Campaign Legal Center has pushed for the Federal Election Commission, that independent watchdog, to take the lead. In practical terms, Ellen Weintraub says that effort will need to start with structural changes to that agency, and ultimately, Congress needs to take up the cause.
Ellen Weintraub: I believe that most Americans, and polls show this, really hate this system, the way we finance our elections, and I think that public pressure could be brought to bear on members of Congress, but it would be a tough slog. There are bills in Congress now that have been proposed that would really improve the campaign finance world.
Simone Leeper: One of the bills former Commissioner Weintraub is referring to is the DISCLOSE Act, sponsored by Senator Whitehouse. It would go after dark money and bring more transparency to political spending.
Sheldon Whitehouse: Anybody contributing more than $ 10,000 to a political race has to let everybody know who they are, and most donors would never get that far because most donors don't give more than $ 10,000. And when you do that, a couple of things happen, the political messages get less toxic, and then I think most of the money goes away if there's real transparency.
Simone Leeper: The FEC itself also recommends changes that Congress could make to strengthen campaign finance laws. For as polarized as the parties are, the agency's commissioners have still come together to back these suggestions.
Ellen Weintraub: Every year the FEC sends recommendations to Congress, and by tradition at the FEC, they are a unanimous package, which I think gives them more strength that causes Congress to listen to us. But among those proposals would be strengthening the personal use restrictions. Right now, the laws against personal use of campaign funds do not cover most political committees, they don't cover Super PACs, they don't cover party committees. While there is some discrepancy amongst commissioners in our views as to how far those laws go now, I think there is unanimity that those laws need to be bolstered. There's no reason why anybody who has control of political funds should not be limited in how they use them in terms of not being able to put them into their own pocket. I would like to see more restrictions placed on inaugural committees. A lot of money is donated to these inaugural committees, and there is very little regulation of how that money is spent or what can be done with it, if, as I think must be true this time, more money was collected than was actually spent on the inauguration. So those are some of the substantive rule changes that I would like to see.
Simone Leeper: Perhaps even more straightforward, the FEC could lower the threshold at which it pursues complaints. At present, the agency needs a majority of commissioners to agree before it initiates an investigation. Three partisan commissioners can therefore deadlock the agency.
Trevor Potter: It takes four votes for the commission to act. That means you have to have a bipartisan consensus. And if three commissioners refuse to enforce the law, three commissioners refuse to open investigations, the commission will do nothing, and that's where we've ended up. I think the latest numbers were that there were 54 different complaints filed against either the Trump campaign or entities associated with President Trump, and the FEC has said, in congressional testimony, that it has pursued zero of those, none of those were able to get four votes to even open an investigation.
Simone Leeper: Ellen Weintraub agrees, the FEC should be able to launch investigations more easily, among other solutions.
Ellen Weintraub: There are procedural changes at the FEC that I think would help the agency function better. One would be to switch the presumption on when an investigation gets started, such that if the non- partisan professional staff of the FEC recommend an investigation, they would be allowed to pursue that investigation, unless they were overruled by four commissioners or more, rather than it requiring four or more commissioners to start the investigation. Because I think what we have seen at the FEC is that commissioners who don't want to see the law very strongly enforced have just raised the bar on that initial question of whether to start an investigation, whether there is, in the terminology of the statute, " Reason to believe that the law may have been violated." Some commissioners have interpreted that phrase to say, " Well, unless I actually have evidence in front of me that the law was violated, then I'm not going to start an investigation," which is kind of perverse, because we are the investigators, we are the ones with subpoena authority. It's unreasonable to expect complainants to have already done an investigation before they come to us.
Trevor Potter: There are ways that Congress could at least provide full disclosure of all money spent in federal elections and could prohibit the sort of coordination that Elon Musk engaged in the last election. The courts have said, for the moment, absent an amendment, you can't limit independent speech, but they've also said you can make sure it's fully transparent and it's truly independent. And Congress could pass laws that would reform the FEC, make sure that it enforces those rules, Congress could clarify those rules, so that we would be much closer to the sort of full disclosure non- corrupt system that the Supreme Court said it was giving us in Citizens United and some of these other cases.
Sheldon Whitehouse: We've got to do a lot of self- reflection, we've got to fight our way back so that we are the democracy we aspire to.
Simone Leeper: Senator Sheldon Whitehouse.
Sheldon Whitehouse: If we got dark money out of our politics, then people would feel that the attention of elected officials was shifting back to voters and away from the folks behind the dark money, and that would be a reassuring thing.
Simone Leeper: Keeping the system healthy doesn't just fall to federal authorities, voters too can step up. Arizona voters in 2022 passed Proposition 211, known as the Voters' Right to Know Act. The measure requires public disclosure of who's behind large campaign media spends. It essentially functions at the state level in the same way Senator Whitehouse's DISCLOSE Act, were it enacted into law, would work at the federal level. More than 70% of voters in that purple state favored the measure. The public support is there for greater campaign spending disclosures.
Trevor Potter: If you look at people who say there's too much money being spent in elections, the system is too corrupt, individuals, corporations, shouldn't be able to give or spend that much, those all get high approval ratings from voters. But that's obviously not the way the system is currently working. The answer to that is probably a constitutional amendment. The way to do an amendment is to have citizens push state legislatures, push their members of Congress, and say, " We want a different interpretation of the First Amendment. We value free speech, but we don't think free speech means that billionaires should be able to basically buy elections in ways that benefit themselves, but not everyone else."
Simone Leeper: The record- breaking amount of money sloshing into our elections creates incredible risk for our democracy. And as we have heard today, the fundamental guardrails on that spending keep getting looser. And the structure of the Federal Election Commission makes it fairly simple to subvert any real enforcement. But it's clear now, more than 15 years after the Citizens United decision cleared the way for unlimited spending by big donors, that the public is catching on. Voters don't like this system, only big donors do. And when Americans get the chance to weigh in, they have made it clear that they prefer that political spending not overwhelm their right to free speech. We have the tools available to get ourselves out of this situation, but Congress needs to make it a priority. It's time for new legislation to limit campaign spending, crack down on coordination, and shine a light on those in the shadows behind dark money.
This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. We're a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. We fight for every American's freedom to vote and participate meaningfully in the Democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status. During this pivotal moment for our country, it is critical that Campaign Legal Center has the support it needs to continue to fight on behalf of the American people. Your tax-deductible donation can directly fund our efforts to do just that. If you would like to support our work, just go to CampaignLegal.org and click on the donate button.
Special thanks to our guests, former Commissioner Ellen Weintraub, Senator Sheldon Whitehouse and Trevor Potter. I'm your host, Simone Leeper. Thanks so much for listening. Find us on your podcast platform of choice, and hit subscribe to get updates as we release new episodes. Leading the production for Campaign Legal Center are Casey Atkins, multimedia manager. Mannal Haddad, senior manager for strategic communications and marketing, and Madeleine Greenberg, communications associate. This podcast was produced by Sam Eifling and Ebyan Abdigir, edited and mixed by Patrick Emile. Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at DemocracyGroup.org.