It has been written a million times: The Federal Election Commission is a “dysfunctional” agency. But don’t jump on that bandwagon just yet.
The FEC is an independent, six-member agency that requires four votes to act but prohibits four members of the same political party from serving together. In practice, that means three Democrats and three Republicans; a microcosm of the doctrine of “mutually assured destruction” built on the understanding that there is no such thing as a disinterested administration of political spending.
The FEC’s loudest critics—congressional Democrats, left-leaning interest groups supportive of campaign finance regulation and liberal editorial boards—say they want strict enforcement of “the law.” In reality, they lament that the FEC’s structure prevents the most extra-legal proposals from being implemented. They envy an odd-numbered agency, such as the Federal Communications Commission, that can muscle through a “Net Neutrality” rulemaking even after a federal circuit court tells them no.
The FEC’s three-three split, however, slows good proposals, as well. The question is always, “Who’s to blame?” Most of the recent criticism fingers the Republican-appointed members of the FEC for supposedly abdicating their duty to enforce campaign finance laws.
“I’ve never seen an FEC this bad before,” Public Citizen’s Craig Holman told Bloomberg News. “They’re just giving the green light to everyone saying, ‘We’re not going to enforce the laws; you can do whatever you want.’”
At the FEC’s June 15 public meeting, GOP and Democratic commissioners clashed again over how to reconcile court cases invalidating campaign finance laws with the 559-page thicket of federal campaign finance regulations.
FEC commissioners sharply debated amending the agency’s regulations in the wake of the Supreme Court’s Jan. 2010 ruling in Citizens United v. Federal Election Commission. Republicans want to remove regulations that the Court explicitly invalidated in Citizens United. Democrats seek a wide-ranging rulemaking that would add new disclosure regulations (as well as restrictions on U.S. companies with international operations). An aborted effort by the FEC in January stalled over the same disagreements. At both meetings, the commissioners split their votes, meaning the process cannot move forward.
Ellen Weintraub, the most outspoken Democrat on the FEC, mocked Republican commissioners for not giving in to her demand for an expansive rulemaking, which would smuggle in portions of a Democrat-sponsored “DISCLOSE Act” that failed to pass Congress—twice.
“I know you don’t want to censor me,” she said. “That would be contrary to all your deeply held beliefs.”
“If it were only so easy,” shot back Republican FEC vice chair Caroline Hunter.
Hunter stressed that Republicans and Democrats agreed on roughly the first 75 pages of the rulemaking notice – perhaps 90 percent of the document. Nonetheless, Democrats remain steadfast in delaying the process by insisting on new disclosure regulations, which the Court did not sanction in Citizens United. The Court, as Hunter noted, upheld existing regulations. It did not mandate or endorse additional disclosure regulations.
Weintraub responded by taking a personal swipe at GOP commissioners, chiding them for not allowing public comment on her pet issue: “It’s arrogant to assume that all the knowledge in the world on this subject is contained at this table,” she said.
Don McGahn, the intellectual instigator on the GOP side of the dais, called for the mike: “We can wrap ourselves in the flag and have condescending language and laugh and giggle and all that, but this is serious stuff,” he said.
McGahn recounted the charged partisanship of the issue. After the DISCLOSE Act failed in 2010, word leaked that the Obama Administration was drafting an executive order to force businesses with federal contracts (but not public employee unions or liberal nonprofits with government grants) to disclose their contributions to independent groups such as the U.S. Chamber of Commerce. A liberal nonprofit petitioned the FCC seeking a backdoor way to add more disclosure regulations for broadcast advertising. The Internal Revenue Service announced an investigation into nonprofits that engage in political speech.
The weight of the Obama administration, congressional Democrats and the professional left has been leveraged to crack down on political speech in advance of the President’s reelection campaign. Republicans on the FEC counter that in a series of appellate and Supreme Court decisions, the judiciary has bench-slapped the agency and curtailed its authority to dictate the rules of political debate in America.