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Analysis

FEC’s Status Quo is Hazardous — Proposed Legislation Would Help Fix It

At the hearing on H.R.1 before the House Oversight and Reform Committee, opponents of the bill set their sights on the bill’s reforms to the Federal Election Commission (FEC), charging that these changes would allow a dangerously partisan takeover of our nation’s campaign finance regulator. As someone who used to work at the FEC, I could not disagree more.

February 10, 2019

Right now, the FEC is evenly divided between Demo­crats and Repub­lic­ans and notori­ously dysfunc­tional. It dead­locks on whether to pursue most signi­fic­ant campaign finance viol­a­tions — often after sitting on alleg­a­tions for years without even an invest­ig­a­tion. Its process for issu­ing new rules has virtu­ally ground to halt. The agency took five years just to delete the two regu­la­tions struck down by the Supreme Court in Citizens United, the Supreme Court decision that kicked off the super PAC era in which we live today. 

And the commis­sion is beset with manage­ment prob­lems. There hasn’t been a perman­ent general coun­sel (the Commis­sion’s chief legal officer and one of its two most import­ant staff posi­tions) in more than five yearsMorale among rank-and-file is lower than in most other places in the federal govern­ment. H.R. 1 would go a long way towards address­ing these issues.

H.R. 1 would over­haul the FEC by redu­cing its six commis­sion­ers to five, with no more than two for each major party and one inde­pend­ent. One of these commis­sion­ers would be desig­nated by the pres­id­ent to serve as chair, respons­ible for hiring the agency’s staff director, submit­ting its budgets, and running it on a day-to-day basis. These changes would bring the FEC more in line with how most inde­pend­ent federal agen­cies run, except that, unlike those bodies, the pres­id­ent’s party would never have a major­ity. H.R.1 would also set up a bipar­tisan, blue-ribbon panel to vet poten­tial nomin­ees and make public recom­mend­a­tions to the pres­id­ent, which is not the usual prac­tice for other agen­cies.

The bill’s crit­ics argue that even with these safe­guards, it would still be easy for one party to weapon­ize the FEC. They suggest that the inde­pend­ent on the Commis­sion would likely be a wolf in sheep’s cloth­ing — that is, nomin­ally inde­pend­ent but really a partisan. They also suggest that a pres­id­en­tially appoin­ted Commis­sion chair would be tantamount to an “elec­tion czar,” with vast power to perse­cute the pres­id­ent’s oppon­ents.

Presum­ably such nomin­ees would not survive bipar­tisan vetting, so for these scen­arios to come to pass, both the pres­id­ent and senate would have to be will­ing to disreg­ard this process.

What H.R.1’s crit­ics miss is that these dire predic­tions could just as easily come to pass under the FEC’s current struc­ture. As a legal matter, the pres­id­ent has consti­tu­tional author­ity to nomin­ate whomever he wants to serve on the FEC, provided no more than three of the nomin­ees are affil­i­ated with any one party. There is no bar on a pres­id­ent nomin­at­ing a “Demo­crat” who just last week was registered as a Repub­lican, or vice versa. The tradi­tion of pick­ing three commis­sion­ers closely aligned with each major party is just that, a tradi­tion. By impli­citly rely­ing on polit­ical actors to refrain from the most extreme types of partis­an­ship, H.R.1 is break­ing no new ground.

It should come as no surprise that those crying loudest about a “partisan takeover” of the FEC are the same people who gener­ally oppose all campaign finance limits (which the vast major­ity of Amer­ic­ans support). For the most zeal­ous proponents of unfettered campaign spend­ing, having no cop on the beat may seem like a pretty good deal. I think they are wrong. If we are going to have campaign finance rules, they should be enforced. If we don’t want them, they should be repealed.

A func­tional FEC might actu­ally loosen some of the rules crit­ics complain about most, rather than leav­ing them on the books to confuse every­one but the most soph­ist­ic­ated play­ers. Every­one should want this level of clar­ity — which helps explain why similar FEC reform propos­als have garnered bipar­tisan support in the past.

Person­ally, I gener­ally support stronger campaign finance rules (though not always), but I respect that many people who would make excel­lent FEC commis­sion­ers have a differ­ent perspect­ive. I would much prefer a func­tional FEC run by someone who might not share my views to the grid­locked body we have now. I know I am not alone.