August 22, 2005
The Corruption Commission
By James Sample
Nominees for important government posts will be announced in a matter of days, and the radical suggestion of Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., is this: Appoint capable individuals inclined to carry out their legally mandated duties.
Three years ago, in response to widespread public support, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA). In late 2003, the Supreme Court upheld nearly every critical aspect of BCRA against challenge. Now, opponents of reformand even nominal campaign finance proponents in Washingtonare planning to use appointments to the decidedly low-profile FEC to undermine those high-profile victories. It is a tale of Washington at its worst.
Established by the Federal Election Campaign Act of 1974, the Federal Election Commissions (FEC) six commissioners are appointed by the president and confirmed by the Senate, with no more than three members to be affiliated with one political party. Nominees of both major parties have often been chosen for their perceived partisan loyalties, rather than for their ability and inclination to enforce the laws passed by Congress. Indeed, one outgoing GOP commissioner, Bradley Smith, routinely advocated the abolition of the very commission of which he was a member, and the repeal of the laws the taxpayers were paying him to administer.
Smith is one of four commissioners presently serving despite a technically expired term. Commissioners are allowed to remain until replacements are named, but because Smith returned to private life as of midnight August 21, and since appointments are typically made in pairs so as to ensure equal party representation, President Bush will soon be appointing a full two-thirds of the commission.
Under the circumstances, the president has the potential to bring about a dramatic change in the FEC. That dramatic change should be a paradigmatic one. It is inappropriate to appoint commissioners of either party who are determined to undermine the effectiveness of the very laws they are appointed to enforce. Yet that is exactly what has happened in the past, and precisely what congressional leaders are proposing to do again.
Undermining the campaign finance laws is hardly a goal exclusive to either party. Senate Minority Leader Harry Reid, D-Nev., has indicated that he will be recommending Reno lawyer Steven Walther and labor lawyer Robert Lenhard to fill the Democratic posts. Walther, who served as an attorney for Reid in 1998, has no apparent experience in campaign finance law. More troublesome is Lenhard, who is on record as opposing BCRA. Lenhard worked as counsel with one of the many labor organizations that unsuccessfully challenged the constitutionality of BCRA in the courts. In 2003, when Lenhard’s name was circulated as a possible FEC nominee, Sen. McCain bluntly described Lenhard as “someone who would use his position not to enforce the law, but weaken it.”
One regrettable aspect of Sen. Reid’s suggestions is that he, along with substantial majorities in both houses of Congress, actually supported the highly popular BCRA. Now, far removed from the spotlight, he is one of many incumbents with both the incentive and the opportunity to surreptitiously emasculate that same legislation. In certain respects, the balanced commission is designed for deadlock. Nonpartisanship, however, need not manifest itself in ineffectiveness. It is expected, indeed necessary, for commissioners to bring divergent perspectives to bear in administering complex laws. It is equally necessary that appointees demonstrate an inclination to temper adversarial partisanship in order to promote the integrity of the electoral processes that shape our democracy.
Pollyanish though it seems, a legitimate opportunity exists to facilitate a respected—and productive—FEC. To make that a reality, President Bush must choose to listen to the true, proven advocates of campaign finance reform. Recently, the principal sponsors of BCRA in the House and the Senate, from both sides of the aisle, urged President Bush to appoint commissioners “who are serious about their duties to enforce campaign finance laws.” That is the radical proposition.
More recently, and despite indications that congressional Republicans are bent on appointing loyalists, Sen. McCain has urged consideration of a former FEC general counsel, two individuals with experience as executive directors of state election boards, and the president of the International Foundation for Election Systems for the two Republican seats on the commission.
Sen. McCain is also suggesting that FEC Chairman Scott Thomas, a pro-reform Democrat whose term is expiring, be re-nominated, and that Democrat Nicole Gordon of the New York City Campaign Finance Board be considered for the other Democratic slot. In other words, Sen. McCain is urging the consideration of a diverse slate of candidates, but one in which each candidate—regardless of party affiliation—has a demonstrated expertise in campaign finance and election laws, and a commitment to enforcing them. These straightforward exhortations should be heard and carefully considered by President Bush and by leaders on both sides of the aisle.
In 2002, after repeatedly expressing his support for a ban on unregulated “soft” money, President Bush signed BCRA into law. The president can now ensure that the people charged with administering BCRA are committed to doing just that. The spotlights are off; the flashbulbs are no longer popping. But the efficacy of the reforms demanded by the people is very much at stake.