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Analysis

How the For the People Act Would Strengthen Campaign Finance Rules

Changes in the bill would help the FEC fulfill its mission of restraining the role of money in America’s political system.

June 1, 2021

This piece was origin­ally published in The Hill.

At a Senate hear­ing in May on the For the People Act, the land­mark demo­cracy reform bill that passed the House in March and is now pending in the Senate, oppon­ents of the bill repeatedly attacked provi­sions that would over­haul the Federal Elec­tion Commis­sion, our nation’s troubled campaign finance regu­lator. The FEC reform provi­sions drew more ire than any of the bill’s other campaign finance reforms, with Senat­ors predict­ing that the agency would become a “partisan weapon,” to quote Sen. Ted Cruz (R-Texas) that Demo­crats would use to perse­cute Repub­lic­ans.

In real­ity, the bill’s changes are fairly modest, and unlikely to result in the commis­sion being weapon­ized against either party. But they will make it a more func­tional body capable of enfor­cing the law as writ­ten. For defend­ers of the status quo like Cruz and Senate Minor­ity Leader Mitch McCon­nell (who has been attack­ing these provi­sions of the bill for years), any effort to have the FEC actu­ally fulfill its stat­utory mission to restrain the role of money in our polit­ical system is unac­cept­able. 

Their views might have sali­ence “under the Dome” of the Capitol, but they are out of step with the Amer­ican people.

By any ordin­ary meas­ure, the evenly-divided FEC — where I worked as a senior staffer to one of the Demo­cratic commis­sion­ers — is not doing its job. 

On enforce­ment, a commis­sion vote is required to even invest­ig­ate seri­ous legal viol­a­tions. Usually those votes dead­lock along party lines, often after the commis­sion has sat on a matter for years. That happened most recently in connec­tion to hush money payments made to the adult film star Stormy Daniels on behalf of former Pres­id­ent Trump shortly before the 2016 elec­tion. The commis­sion’s profes­sional nonpar­tisan staff recom­men­ded invest­ig­at­ing whether Trump and the Trump Organ­iz­a­tion inten­tion­ally broke the law (former Trump lawyer Michael Cohen was prosec­uted by the Depart­ment of Justice and went to prison on the same facts), but commis­sion­ers split on whether to follow the staff recom­mend­a­tion and the matter died.

The FEC also struggles to update its rules, which have not kept pace with chan­ging laws or tech­no­logy. Most recently, a modest proposal to improve trans­par­ency for certain online campaign ads like those the Krem­lin and other malign foreign actors have used to manip­u­late the U.S. elect­or­ate has languished for years. 

The For the People Act would tackle these prob­lems by redu­cing the number of commis­sion­ers from six to five, to make it easier for decisions to be made by a major­ity vote. It would also allow the pres­id­ent to desig­nate a chair­per­son to over­see the agency’s day-to-day oper­a­tions. And it would give the agency’s nonpar­tisan staff more author­ity to invest­ig­ate wrong­do­ing on their own initi­at­ive.

These are not radical reforms (similar propos­als have garnered bipar­tisan support in the last three Congresses). They would simply make the FEC more like other long-estab­lished federal regu­lat­ors, such as the Federal Commu­nic­a­tions Commis­sion and U.S. Secur­it­ies and Exchange Commis­sion. 

And unlike these other bodies, the FEC still would not be controlled by the pres­id­ent’s party. The For the People Act reserves one of the commis­sion’s five seats for a polit­ical inde­pend­ent, who cannot have been affil­i­ated in any way with either of the two major parties for the preced­ing five years. It also sets up a bipar­tisan blue-ribbon panel to vet poten­tial nomin­ees, which typic­ally does not exist for other agen­cies. These are much stronger safe­guards than exist under current law.

Unlike other federal regu­lat­ors, the FEC does not even have power to directly levy penal­ties for lawbreak­ing in most instances. Instead it has to seek them in court, adding an extra layer of protec­tion. The For the People Act would not signi­fic­antly change this process.

So what’s behind all the sound and fury? 

While the bill would not turn the FEC into an all-power­ful elec­tion over­seer, it would allow the agency to fulfill its core mission of inter­pret­ing and dili­gently enfor­cing the law. For the most zeal­ous oppon­ents of campaign finance regu­la­tion (includ­ing power­ful U.S. senat­ors), that is simply a bridge too far. 

They simply do not view most restric­tions on campaign money as legit­im­ate. McCon­nell and his allies have waged a decades-long court battle to get these rules inval­id­ated. Those efforts have met with only partial success. Even the notori­ous Citizens United decision resound­ingly upheld trans­par­ency require­ments for polit­ical spend­ing and left in place limits on direct contri­bu­tions to candid­ates. But with the main agency charged with enfor­cing such rules largely miss­ing in action, the protec­tion they offer our polit­ical system is mostly hollow.

This is not what Amer­ic­ans want. Poll after poll shows lopsided major­it­ies in favor of stronger campaign finance rules. When asked, Amer­ic­ans also make clear they want those rules enforced.

That simply will not happen until we fix the FEC.