Reform the FEC to Ensure Fair and Vigorous Law Enforcement

The Brennan Center’s Democracy Agenda outlines a series of concrete proposals that the next President and Congress should embrace to improve democracy in America.

February 4, 2016

Even if we adopted all these proposals to revitalize democracy, they would be meaningless — as would existing campaign finance regulations — if they were not enforced vigorously and fairly. Today, current laws on matters such as disclosure and coordination go largely unenforced because the Federal Election Commission’s (FEC) refuses to act. FEC penalties have dropped markedly in recent years, and deadlocks on various decisions have sharply increased — despite dramatic spikes in spending, the agency in 2014 issued the lowest amount of fines (measured by total dollar amount) since the current penalty system began in 2001.[1] Many observers, including the agency’s own chairwoman, deride the FEC as ineffectual.[2]

There are several causes for the FEC’s dysfunction. Most significant is the Commission’s structure: It is composed of six commissioners, three Republicans and three Democrats. The result is a large number of party-line votes that result in inaction. Yet the 3-3 split does not stem from the type of partisanship one might expect, with Republicans willing to enforce the law only against Democrats, and vice-versa. Instead, the divide is more starkly ideological. GOP commissioners are often unwilling to investigate potential violations against members of either party, and are unlikely to consent to any new rules imposing tougher restrictions.[3] In large part, this ideological divide was created because presidents have traditionally deferred to the leaders of each party in Congress when appointing commissioners, and the FEC’s deadlock reflects the similar problem on Capitol Hill.[4]

Proposal

The first step to reforming the FEC is for the president to break with tradition and stop allowing congressional leaders to pick commissioners. Instead, the president could appoint highly respected, nonpartisan commissioners, such as retired judges, academics, and business or community leaders, who could help end the partisan deadlock.

It is also vital that Congress change the structure of the FEC — including the number of commissioners and the process for selecting them — so the agency can move forward with enforcement actions and does not deadlock on important votes. For example, Congress should change the number of commissioners from six to an odd number. A nonpartisan selection mechanism for one or more commissioners, as was done in Wisconsin for years, could also reduce polarization. To ensure a backlog does not hamper the operation of the law, a new measure could create a nonpartisan enforcement position within the Commission, with broad authority to investigate potential violations and issue penalties, subject to the commissioners’ override.

In June 2015, a bipartisan group of House members introduced a pragmatic bill that would implement many of these FEC reforms.[5] The measure would reduce the number of commissioners from six to five, make the fifth commissioner a nonpartisan member, and provide for the agency to have a permanent chair with a 10-year term. It would also create a “blue ribbon advisory panel” to help the president choose commissioners, and give the nonpartisan chair various administrative and investigatory powers. The next Congress should act quickly to pass this proposal or a similar one to end the lawless state of federal elections.

Resources

  • Restoring Integrity to America’s Elections Act: A bipartisan bill sponsored by Reps. Derek Kilmer (D-Wash.) and Jim Renacci (R-Ohio) to reform the FEC.
     
  • Comment to the FEC: Fix Campaign Rules to Address 'Citizens United' and Other Supreme Court Decisions: Testimony urging the FEC to close loopholes in its disclosure and coordination regulations.

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[1] Eric Lichtblau, F.E.C. Data Shows Campaign Fines Hit Record Low in 2014, N.Y. Times, May 5, 2015, http://www.nytimes.com/2015/05/06/us/politics/fec-says-campaign-fines-hit-record-low-in-2014.html. The almost $600,000 in fines assessed in 2014 amounted to about 10% of the $5.9 million in fines issued in 2006.

[2] Craig Holman, Broken FEC is making a mockery of campaign finance laws, Sacramento Bee, Apr. 1, 2015, http://www.sacbee.com/opinion/op-ed/soapbox/article17130476.html, Eric Lichtblau, F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says, N.Y. Times, May 2, 2015, available at http://www.nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-election-abuse-commission-chief-says.html.

[3] Melanie Sloan, No vote of confidence for FEC, Politico, Apr. 30, 2013, http://www.politico.com/story/2013/04/no-vote-of-confidence-for-fec-090783.

[4] Reforming the Federal Election Commission, Citizens for Responsibility and Ethics in Washington, http://www.citizensforethics.org/policy/entry/reforming-the-fec.

[5] Press Release, Rep. Derek Kilmer, Kilmer, Renacci Introduce Bipartisan Bill to Fix America’s Election Watchdog (June 26, 2015), available at http://kilmer.house.gov/media-center/press-releases/kilmer-renacci-introduce-bipartisan-bill-to-fix-america-s-election