On Tuesday, reformers, led by Congressmen Shays and Meehan, sued the FEC over coordination and other regulations, and yesterday, they stepped up their attack with new calls for an end to the agency.  Under the bill they support, sponsored by Shays, Meehan and Senators McCain and Feingold, the agency’s role would be assumed by a powerful Federal Election Administration. 

   Six members would be replaced, immediately, with three, nominated by the President and confirmed by the Senate, and one of them, the Chair, would be appointed for a term of 10 years.  This new Administration would favor, on the numbers, one party or the other, since (and here the bill is less than clear) the Members other than the Chair could not be affiliated with the same political party.  So the Chair’s affiliation—unless she had none—would determine the partisan balance, for ten years.  And, of course, even if the President nominated someone without party affiliation or whose partisan loyalities were ambiguous, this would still be the President's choice: still, in this sense, a partisan choice, likely made with some assumptions about future performance.

   The Administration constituted in this way would have broad powers, including the power to determine monetary penalties and to issue “cease and desist” orders against future, anticipated violations of the law.  Each Chair would have impressive powers, too: the appointment of the Staff Director, the appointment (with the approval of at least one other Member) of the General Counsel, and control over the budget.  And all this, for each Chair, for the duration of a ten year term.

   But there are other provisions structured, it seems, to counteract any excessive partisanship, and these include interesting features, which may hold a clue to the hopes and dreams of reform proponents standing behind this proposal.

 The appointments to the Administration would be governed by certain qualifications:

1. The possession of no less than five years of professional law enforcement experience;

2. The absence in the previous four years of any service to the Executive Branch as a    Schedule C appointee

3. The absence in the previous four years of  activity as a candidate, or as the employee of a candidate, or as the office or employee of an elected official or political party

4. The absence in the previous four years of any service as attorney to candidates or elected officials or parties.

   This is expected to do it: keeping out the people with political experience, or experience in the practice of election law, and substituting for them personnel with law enforcement experience, is the mechanism for comforting those concerned about an agency with a powerful Chair and one party most probably in control in the ten year period of each Chair's term. 

   There is one additional requirement, consistent with directing the removal of all sitting Commissioners within six months of the date of enactment.  Existing or former Commission members are ineligible for appointment, except for those Commissioners who served in the past but not subject to a term limit.  Many of those who so served, free of term limits, are no longer with us, unable to experience the disappointment of statutory exclusion. Others, long gone from the scene, would seem far-fetched choices, advanced in age or far removed from, and now unfamiliar, with the complex regulatory developments since their time in grade.

    One exception is a prominent former Member of the Commission, whose service with the agency was not term-limited and whose years there, together with prior service with the Department of Justice, enables him to meet requirement of five years of law enforcement experience.  
   
   This is of course, Trevor Potter, President of the Campaign Legal Center and counsel to Presidential aspirant John McCain, who co-authored a letter to the Hill yesterday, urging support for the bill to establish new Administration. 

   So, should this Administration come into existence, Trevor has a shot at joining this new agency; I would not.  Nor would any of my friends and colleagues and clients who are lawyers or candidates or elected officials (at least within four years of the date of nomination.)  Our experience—our political experience—disqualifies us.  The pleasures of serving “cease and desist” orders on our adversaries will never be ours.

 Darn.

Bob Bauer