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.
That simply will not happen until we fix the FEC.