The submissions to the FEC, particularly those by its critics, needs to be read the right way.  The critics have a nice tail wind to work with:  virtually all public commentary about the FEC, from reform editorialists to the stern judges at the Center for Competitive Politics, is of the unfriendly sort.  The FEC is seen not to measure up, regardless of the measure used. 

     In the regulated community, the measure is due process, but what is due process to these critics is, to others, a disingenuous slogan, tossed about in the service of obstructed enforcement.  Ditto, “constitutional” objections:  for some critics, these objections reflect principled adherence to the First Amendment, while for others, they are the shiny varnish applied to an uncompromising rejection of regulation.

     The FEC is misunderstood.  Even its origins are dimly grasped.  It is thought that the agency is the product of bipartisan conspiracy, officeholders banded together in self-protection.  At the time, however, the House and Senate, on a bipartisan basis, believed that they were strengthening enforcement of the law and that the model adopted was not much different than the standard model for administrative agencies.

     The FEC came into being in the 1970s, at a time of agency creation and expansion:  it was a different kind of agency, but not all that different.  Other than Wayne Hays, then Chair of the House Rules Committee and a resolute foe of the FEC, other Members accepted that the agency should be, in the manner of other agencies, “independent”.  Hays pressed for a very distinctive alternative:  a “Board” whose voting members included Congressional officers and whose regulations would be subject to veto by House and Senate oversight committees (!).  But Hays' colleagues prevailed with a stronger version:  legislative veto authority (not at all uncommon in agency formation at the time) was conferred on both Houses and House and Senate officers could participate but without votes.

     For the FEC, the question has never really been one of independence from Congress.  Congress conducts oversight but not obsessively.  Appointments languish.  Subtract Mcain, Feingold, and a handful of others, and you are left with few Members with an active interest in campaign finance regulation and fewer still with a working knowledge of it.  For thirty years, the Congress has been accused of keeping the law and the agency in check, and, over that same period, the rules have grown profusely and in complexity.

     The problem faced by the FEC is, at heart, one of subject matter.  The regulation of campaign finance is aggravating to political actors, poorly understood by most others; and no-one in either camp benignly interprets the agency’s actions.  It is hard to make clear law in this area, and it is certainly no easier to craft rules with neutral impact on political competition.  In every decision, there are, in the short term, winners and losers.  There are longer term winners and losers, too, but—of course—only identifiable in the longer term.  And there are always consequences, mostly unintended.

     Now this does not mean that the FEC’s work is so hopelessly troubled that it must be ended.  But it would be an improvement in discussions of the agency if the issues were not oversimplified and the stakes not so regularly, and sometimes deliberately, misrepresented.  Neither the regulated nor reform communities present through their criticisms a full picture of the agency’s record.  Their grading systems test for different weaknesses; and they are, each of them, hard graders.

     It is reasonable for the agency to periodically undertake, as it is now doing, a procedural self-assessment.  Its procedures have always been a bit peculiar, in part because of design defects and in part because unsound practices have developed over time.  So, at least, say some (not all) members of the regulated community and, for different reasons, virtually all members of the reform community.  The FEC has now invited them all to consider reforms, and something good could come out of this—an intended or unintended consequence. 

     A good start to a reevaluation could be an agreement to suspend the lampooning of the agency and to accept that its mission is a demanding one.  The FEC may never be anyone’s favorite agency.  Hard it as it is to accept, this is not really anyone’s fault.  Blame will and should be more widely distributed if these reform issues—from all the perspectives from which they are approached—cannot be constructively discussed without resort to hyperbole or imputations of bad faith.

Bob Bauer