The FEC Hearing and Its Detractors

February 12, 2015
posted by Bob Bauer

It seem unfair that just holding a hearing subjects the FEC to criticism and ridicule. The agency was acted entirely reasonably in inviting views on what it might do, if anything, in response to the McCutcheon case.  So what followed was predictable: the usual strong divisions were expressed and anyone hoping for a clear picture of the problems of campaign finance and how to address them was bound to be disappointed.  The FEC is not the culprit here: it only hosted the discussion and is not responsible for its content. It was a hearing.

And while additional ridicule has come the agency’s way for inviting public comment, some of which was colorfully off-point, that, too, is no crime: why not give members of the public a chance to come and say what they will about money in politics? Critics cannot have it both ways, complaining one minute that campaign finance is an insider’s game and the public is shut out of it, and then mocking the expression of public sentiment when it is provided for.  Not all of the commentary, as reported, was uninformative.  Consider this comment, quoted by Alex MacGillis in Slate:

The messaging and ads were so relentless and so similar, that it was impossible to separate one PAC or Super PAC from another. It would seem they were all coordinated together, or produced using a common theme. If there was any real independence between any of them, it was impossible to distinguish. The whole thing was sickening.

This is a revealing contribution to the discussion. The commenter is running together a series of concerns: the number of ads and their repetitiveness, and he is seems to be questioning not the independence of groups from the candidate, but from one another. There is little the FEC, or even the Congress, can do to help him. But then, lacking another visible target, many who are “sickened” by advertising and all the money spent on it are angry at the FEC for not doing something.

MacGillis takes the point further and approvingly cites testimony by Professor Zephyr Teachout that the FEC can’t be expected to rise to the regulatory occasion but another, better structured agency might.  MacGillis cites the option of adding a Commissioner, to end the partisan split, and having it “controlled by the party in the White House, or by turning it over to a single Director, as is done with the FBI.”

The one choice is to have either party (and the public) trust in one party’s direction of campaign finance law.  Another would have them accept the authority of one individual who would presumably exercise it for an extended term– ten years, if the FBI plan is followed—and appointed by whichever President happened to be in the right place at the right time.   Neither is likely to be palatable.  Under this plan, the search for agreement would be abandoned in favor of a forcing mechanism. The law produced by this arrangement is far from certain to be better or less controversial. But supporters of these proposals believe something must be done.

Somewhat missing from the commentary was this : the hearing yesterday featured very good, thoughtful testimony from a number of panelists who have practiced it, administered it, studied it, or written extensively about it—or even done all of that.  A number of them had suggestions for a way out of the impasse, by less emphasis on corruption and highly restrictive rules to combat it, and more on measures to promote participation and transparency.  There were well developed proposals, such as Professor Richard Briffault’s, for dealing with certain of the issues in the contemporary debate, such as single candidate Super PACs.

These contributions might have gotten some attention, and the FEC a little credit for arranging for them to be presented.

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