More about the FEC’s Troubles

December 18, 2013
posted by Bob Bauer

The Federal Election Commission has unquestionably had its full share of troubles. And on the agency’s role and performance—about which there is unceasing disagreement—certain points deserve general acceptance: that the FEC’s computers should not be hacked, its Commissioners should not act spitefully toward one another, and it should be provided a reasonable amount of money with which to carry out its functions. Dave Levinthal of the Center for Public Integrity makes just these points, among others, and so far so good; but then he presents a dubious history of the FEC that will confuse readers about the sources of its problems and the reasons why “reform” of the agency is elusive.

Has the FEC, rent apart by ideological differences, engaged in unseemly squabbling in recent years? It is fair to say so, and it is good to hear freshly confirmed Commissioner Goodman suggest that there is no reason for Commissioners to be disagreeable in their expression of otherwise sincerely held differences of opinion. But the Levinthal piece goes farther and re-writes the history of the agency to suggest that in the 1990s the agency was doing its job and transcending partisanship among its Commissioners, only to fall to earth and into disrepute in the following decade. A “golden age,” one is led to believe: “during the 1990s…the FEC’s stature soared,” and while Republican and Democratic Commissioners “certainly disagreed from time to time…they could find enough commonality to cobble four votes together and take action.”

Not exactly. The agency did make decisions, as it is today far less likely to do, but then foes of the agency angrily claimed that the decisions it made were terrible, indeed so bad that those decisions threatened the very viability of the law the Commissioners were charged with enforcing. The Court in McConnell v. FEC, upholding McCain-Feingold, fingered the FEC as the chief culprit in the rise of soft money: its decisions allowed parties to use soft money for “mixed use” activities like GOTV drives and other activities. This, the Court found, “subverted” the intent of Congress. McConnell v. FEC, 540 U.S. 93, 142 (2003).

There was a time, then, when the FEC did muster bipartisan majorities, but its actions met with severe disapproval. Now the disapproval attaches to its failure to reach agreement. Damned if it does act—damned if it doesn’t. What would account for this? This would account for it: that on the hard questions, which are the questions the FEC is judged on, there is considerable ideological and legal disagreement outside the agency, and its inaction will be judged harshly by some while its action is condemned just as harshly by others. The FEC is not having a family feud incomprehensible to outsiders. Its deadlocks, squabbles and sniping are a miniaturized version of the brawl taking place in the wider political and policy world.

Calls for agency reform presume that divisions inside the agency can be overcome by a unity of perspective found outside. But it seems unlikely that a political and legal community divided on campaign finance reform could reform the agency to overcome those same divisions—divisions which the agency is simply replicating.

Levinthal does identify a turning point in the history of the FEC, the passage of McCain-Feingold, but he does not have the cause and effect quite right. He argues that Senator Mitch McConnell, having unsuccessfully challenged the new law, turned his attention to incapacitating the Commission with the appointment of Republican commissioners who opposed vigorous enforcement and favored above all “the free speech rights of political actors.” He misses the divisive effect of McCain-Feingold itself. The traditional Republican wariness of regulated campaign finance turned into outright hostility: if, as its sponsors claimed, McCain-Feingold was necessary for the enforcement of the Watergate reforms, it indicated a future direction for regulation that the Republicans could not abide. The clash in Congress over the these 2002 reforms was ample warning of what lay ahead for the agency.

The FEC cannot be forcibly “reformed” to forge agreements in the face of and in spite of these deep conflicts over constitutional limits and regulatory policy. Still, the point is well enough taken that the agency should have functioning IT, adequate resources, and improved morale to do what it can, and it is certainly a welcome development that Commissioners might get along better.

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