Posted July 21, 2008 by Meredith McGehee and Susan Gershon

Let’s Scratch Out the FEC

The following opinion piece was published in Legal Times on July 21, 2008.

Let’s Scratch Out the FEC

After years of failed enforcement, we need a new agency.
Enforcement of the campaign finance laws is vital in a presidential election year, but the Federal Election Commission is still not up to the job. Its failure has been so persistent over so many years that Congress is now weighing a bipartisan bill that would replace the FEC altogether.

Fairness and integrity in federal elections is just too important for the nation to accept the FEC’s ineffective performance any longer.

One of the latest, most telling signs of FEC failure came last month from the U.S. Court of Appeals for the D.C. Circuit. In a unanimous decision, the panel in Shays v. FEC (known as Shays III) once again rebuked the agency for its so-called “implementation” of the Bipartisan Campaign Reform Act. The court found the FEC’s interpretations of BCRA so far off the mark that it invalidated several FEC regulations as arbitrary and capricious or directly contrary to the law, noting that certain interpretations could “lead to the exact perception and possibility of corruption Congress sought to stamp out in BCRA.”

Now that the six-month standoff over FEC nominees has ended with the confirmation of five new commissioners, the FEC can return to the drawing board, ideally this time to create rules that will truly implement and enforce the law that Congress passed.

But don’t hold your breath waiting for the FEC, a body not-so-affectionately known as the “Failure-to-Enforce Commission.” A better bet is that the FEC will continue with the same kind of attempts to weasel out of effective implementation of the law as it did in Shays III—as well as in Shays I before.

Moreover, the FEC’s individual enforcement proceedings are no better than its regulations. Even on weighty matters, when the FEC musters the two-thirds majority necessary to go after violators, the consequences rarely amount to much.

The FEC’s “record” fines, leveled at offenders like Swift Boat Veterans for Truth and America Coming Together, are still a tiny fraction of the amounts illegally raised and spent by the offenders—no more than 2 percent. Such results, which some former commissioners point to as the FEC’s shining moments, are something that most political players are content to view as the cost of doing business.

Some observers cynically assume that the status quo is the best we can do—that the failure of the FEC is the inevitable result when the regulated appoint the regulators and control their budget. But that’s not the case. Although enforcement of campaign finance law may always be a struggle, the structure and limitations of the FEC have made the task far more difficult than it needs to be, and such structural shortcomings can be fixed.

A NEW AGENCY

To accomplish this, the Federal Election Administration Act, a bipartisan bill currently pending in both houses of Congress, seeks to replace the FEC with a new, more effective enforcement agency, the Federal Election Administration.

This bill is proposed by Sens. Russ Feingold (D-Wis.) and John McCain (R-Ariz.), sponsors of the Bipartisan Campaign Reform Act, and by Rep. Chris Shays (R-Conn.), who brought the Shays cases against the FEC for its failure to properly enforce existing campaign finance law.

Under this bill, the new agency with its three members would be given enforcement powers similar to bodies like the Federal Communications Commission and the Federal Trade Commission. If two members of the FEA found reasonable grounds to believe federal law has been violated, an enforcement action would be initiated before an impartial administrative law judge. This is the sort of procedure long used by agencies ranging from the Securities and Exchange Commission to the Department of Agriculture.

Because a disinterested administrative law judge would adjudicate the complaint, the FEA could escape the situation with the FEC, where the politically appointed commissioners decide whether to pursue enforcement actions. This can lead to Democrats voting as a bloc to protect their own, Republicans doing the same for their party, or, perhaps worst of all, the commissioners voting unanimously to protect a pattern of abuse of the system perpetrated by both parties.

Under the FEA, political operatives would no longer have total control of the process of regulating politicians. Rather, an impartial judge would consider the evidence and have the authority to determine if violations have occurred and what actions to take when they have.

Upon finding a violation, the judge could impose monetary penalties and issue cease-and-desist orders where necessary. The rights of respondents would be protected by their ability to appeal decisions of the judge first to the three-member FEA and, after an adverse decision by the FEA, to a federal court.

TIMELY ENFORCEMENT

Any enforcement agency needs to have the necessary powers to be relevant in the fast-moving field of campaign regulation, and the pending bill has several provisions for timely enforcement.

When violations or impending violations immediately threaten the fairness of the political process, the FEA itself could go to federal court to seek a temporary restraining order to stop legal violations, thereby safeguarding elections while they are occurring.

With these enforcement tools, offenders could be stopped in their tracks and forced to obey the law when it still matters. That’s a big improvement over the current system, where violators can just pay a civil penalty years after the polls close, as groups like Swift Boat Veterans for Truth and The Media Fund did more than two years after violating federal campaign finance laws in 2004.

The bill also would empower the FEA chairman, appointed for a 10-year term, to manage the agency effectively. The chairman’s 10-year term, as well as the prohibition against any member being reappointed for a second term, would provide much needed independence from the politicians involved in the appointment process. The existence of a genuine agency director, rather than the nominal leadership provided by the FEC’s annually rotating chair, would allow greater focus and more effective planning.

EMPOWERED TO ACT

To prevent any major party from having a controlling majority on the FEA, no two members, including the chairman, may be affiliated with the same political party.

Even with this safeguard, some critics still shy away from the prospect of an FEA with a chairman endowed with significant enforcement powers, fearing a biased chairman who might use these powers to target the other party.

But the answer to concerns about biased political appointees is not to hobble federal agencies, but to exercise vigilance in the appointment process. Designing agencies to encourage deadlock and inaction rather than empowering them to carry out their objectives undermines effective governance. Instead of the FEC’s frequent 3-to-3 party-line splits on important matters, the FEA’s odd number of panel members will ensure that key issues are addressed rather than ignored.

There are also those who argue that one party will “hit the jackpot” when it is able to appoint the chairman for a 10-year term. But appointment of powerful, long-serving civil servants by the president, with advice and consent from the Senate, is common practice. The director of the FBI is appointed for a term of 10 years, for example, and the comptroller general of the General accountability Office is appointed to a 15-year term.

Concern over partisan appointments to the FEA by those who do not bat an eye at the similar appointment process and lengthy terms of other appointees reflects a view of campaign finance regulation as a mere partisan game, rather than as what it should be: the enforcement of the laws of the United States.

By tradition and widespread expectation, the president carefully considers long-time appointments for offices such as the FBI director, and the Senate vigilantly scrutinizes such individuals. That process is a sufficient safeguard, and no one would suggest curtailing the power of the FBI because its director is a partisan appointee.

It is time that enforcement of the election laws are treated as seriously as the criminal laws that the FBI investigates. Leaving campaign finance laws in the hands of the weak and lethargic FEC sends a clear message that Congress does not hold campaign finance law in anything approaching high regard. It tells candidates and advocacy groups that they may violate campaign finance laws without fear of swift repercussions, and it tells citizens that they cannot expect fairness and the rule of law to prevail in the financing of the elections that determine our nation’s future.

It is time to put the Failure-to-Enforce Commission out of commission. We need a new model with the power to safeguard our democratic process.

Meredith McGehee is policy director of the Campaign Legal Center. Susan Gershon is a law student at Harvard. The Campaign Legal Center filed an amicus brief in the Shays III litigation on behalf of Sen. Feingold.

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