Posted June 24, 2008 by Meredith McGehee

Von Spakovsky’s Meaningless Stats

The following piece was published as a letter to the editor in Roll Call on June 23, 2008. 

The irony should not be lost anyone that the day before Hans von Spakovsky’s op-ed appeared, (“FEC far from an ‘Irretrievable Disaster,’) Roll Call reported the latest setback suffered by the Federal Election Commission (FEC) in the courts.  In a case usually referred to as Shays III, a three-judge panel in the DC Circuit court struck down several FEC rules implementing the Bipartisan Campaign Reform Act (BCRA), describing them as “absurd,” “arbitrary and capricious,” and declaring that they “run directly counter to BCRA’s purpose.”

The recent rebuke from the court simply does not square with the description of the FEC offered by Mr. von Spakovsky, whose own nomination to the FEC foundered in the Senate.  Sadly, this was not the first time that the Congressional sponsors of BCRA have been forced to resort to the judicial system to try and force the FEC to faithfully interpret and enforce campaign finance laws.

Mr. von Spakovsky touts the fact that the FEC splits its vote in less than one percent of cases. This meaningless statistic includes countless Commission votes dealing with issues like routine administrative errors, and self-reported and uncontested violations.  The truth is that on key issues, the FEC has failed to act.  That was the case on so-called “hybrid ads”—on which the major parties and their candidates spent more than $100 million during the 2004 presidential election—and on the proposed rulemaking for 527 organizations (with approximately $400 million involved).  This pattern of fecklessness reaches back to the early 1980s when the FEC was responsible for creating the soft money loophole. 

The boast of record fines from the FEC also rings hollow.  The “cost of doing business” fines he mentions were levied years after the fact against 527 organizations like Swift Boat Veterans for Truth and the Media Fund, and amounted to less than two percent of hundreds of millions of dollars illegally spent by those groups that took advantage of the FEC deadlock on regulating 527 groups. 

Replacing a dysfunctional FEC with a new Federal Election Administration is not a pipe dream conjured by reformers, but a serious legislative proposal currently pending in Congress.  The bill envisions a process where independent, neutral Administrative Law Judges have a significant role, including decisions regarding “cease and desist orders”.  Hopefully, the legislation will get the careful consideration it deserves in the 111^th Congress.