The FEC’s structure and appointment process has proven, time and again, to elevate partisan politics over principled decision-making. Votes that split 3–3 along partisan lines, and the resulting enforcement paralysis, are now de rigeur. With the persistent stalemate, the FEC has revealed itself as an inept overseer ofelection law.
The BrennanCenter, and other good government groups, recently sent a letter to the FEC voicing concern over this very issue, recommending long-overdue structural changes. The FEC’s frequent deadlock is a product of the rule requiring that any FEC decision have the support of four commissioners. The commissioners, however, often choose loyalty to their parties over loyalty to their position, hence the even splits. As we wrote to the FEC, a far better alternative to the current process where each party fills"its" three spots, would be to “establish a system by which an advisory group made up of distinguished Democrats, Republicans and independents or members of other political parties, would provide [President Obama] (and future Presidents) with a list of potential nominees for each FEC appointment, from which he would select a nominee.”
Just recently, the FEC’s failings were highlighted when it released two non-decisions. In the first, the FEC was asked to consider whether a Utah supporter of Mitt Romney’s 2008 presidential bid violated “in-kind” contribution limits by chartering a plane to fly 150 people to a Boston fundraiser for the candidate. In the second, the FEC failed to reach a decision in a complaint brought by Public Citizen against a tax-exempt organization named Americans for Job Security. Despite spending approximately $40 million dollars since its genesis 10 years ago on political advertisements in support of Republican candidates and attacking Democratic candidates, AJS refuses to disclose its funding sources.
The “through the looking glass” quality of the FEC’s dysfunction in these types of cases is exemplified by the official documents memorializing the stalemates. First, the record states that the FEC “Failed by a vote of 3–3 to pass a motion to” find that federal election laws had been violated, and then that the FEC “Failed by a vote of 3–3 to pass a motion to” reject any of those identical findings. Not only do the deadlocks represent hours of wasted work and tax dollars, the practical result is that the law is not enforced and that the Commission’s inaction will fail to provide guidance for candidates in future races. In fact, such decisions encourage impudence, because they send the message that those wishing to violate election laws can do so without fear of actual enforcement.
At the end of the Romney for President matter described above, a majority of theCommissioners were able to finally cohere around one action. By a vote of 5 to 1 they voted to “close the file.” And thus ended another exercise in futility by the FEC, with a product simultaneously unhelpful, toothless and embarrassing.