- The Washington Times - Monday, October 1, 2012

The Federal Election Commission wasn’t always so dysfunctional.

Despite a setup that fills its six commissioners’ posts with three Republicans and three Democrats, it used to have little trouble conducting oversight and sanctioning dirty campaigns without ending up with the tie votes that have recently hamstrung the agency, leading to an anything-goes atmosphere for candidates and outside groups.

In the four years ending in 2007, the FEC held 2,600 votes on enforcement actions and deadlocked on 1 percent of them. But in the four years since that time, the agency has managed to bring only 760 suspected cases of wrongdoing to votes and has deadlocked on more than 13 percent, according to data compiled and provided to The Washington Times by Public Citizen, which advocates for robust enforcement of campaign finance laws.

When the commission is deadlocked, the result is the same as a “no” vote: No action is taken and any illegal conduct goes unpunished.

“They are in fact abandoning the mission of the agency,” said Craig Holman, a lobbyist for Public Citizen.

The commission hasn’t fared any better on voting to conduct audits, the detailed reviews of campaigns’ spending normally undertaken when there is reason to think something could be seriously amiss.

In 2011, the FEC voted on conducting 20 audits and deadlocked on seven. In 2007, it voted on 40 and deadlocked on one. In 2005, it voted on 61 and deadlocked on one.

No ‘fresh blood’

The dramatic reduction in enforcement and regulation by an agency tasked with doing just that, during an election year in which more groups have spent more than ever before, baffles former top officials.

“Whether this commission is salvageable is an open question,” said Lawrence M. Noble, a former general counsel of the FEC who now heads Americans for Campaign Reform.

What the commission needs is fresh blood, it would seem — but that is ultimately up to President Obama, who selects the commissioners.

Although the panel has no official vacancies, all but one of the commissioners are serving past the planned ends of their terms, and Mr. Obama has not tried to fill most of the available slots. Four of these five members’ terms expired during Mr. Obama’s presidency.

The White House did not explain the delay.

“We are not going to publicly speculate on future personnel decisions, but the president intends to nominate well-qualified candidates, and we will continue to support strong enforcement of our campaign finance laws,” spokesman Eric Schultz said in an email.

Mr. Schultz gave the same response, word for word, to Bloomberg News service when asked about the issue in April.

Uneasy balance

By law, no party can have more than three members on the six-member panel and, by custom, a president keeps the FEC’s 3-3 partisan balance by asking the opposing party’s leader in the Senate to recommend a nominee when a slot opens.

Michael Brumas, a spokesman for Senate Minority Leader Mitch McConnell, Kentucky Republican, pinned the blame on Mr. Obama for the absence of nominations, but would not say whether his office has forwarded any names to the White House.

Soon after assuming the presidency, Mr. Obama nominated labor lawyer John Sullivan to fill one of the Democratic slots, but Sens. John McCain, Arizona Republican, and Russ Feingold, Wisconsin Democrat, put a hold on his confirmation. The two men, who co-sponsored the most significant limits on campaign finances in decades, said they wanted all of the FEC’s expired slots filled at once.

The Senate usually votes on Republican and Democratic nominees in tandem, but Mr. McConnell did not appear in any rush to select other Republicans to sit on the commission. So after more than a year in limbo, Mr. Obama withdrew Mr. Sullivan’s nomination.

McConnell’s dissent

Mr. Holman blames the impasse on Mr. McConnell, who has been critical of campaign finance regulations as a violation of the First Amendment guarantees of free speech and press.

The ineffectiveness of the federal watchdog panel is “really what Mitch McConnell has in mind,” Mr. Holman said. “He’s despised every campaign finance law he’s ever seen and he certainly can’t convince the public, but what he can do is appoint people who don’t believe in the law and won’t enforce it.”

Mr. Holman also accuses the three Republican commissioners — Caroline Hunter, Donald McGahn II and Matthew Petersen — of causing the FEC’s inability to agree even on matters that he says are clear-cut.

He and others said that previous Republican commissioners preferred more-lenient regulations, but they understood their role to be enforcing the law as it stands, not engaging in the equivalent of judicial activism.

“It’s quite clear that the three Republican commissioners fundamentally disagree with many of the campaign finance laws on the books and would rather not enforce them,” said Paul S. Ryan, a lawyer at the nonpartisan Campaign Legal Center, whose president, Trevor Potter, was a Republican commissioner.

While many Republican commissioners provide legal justification for their decisions, sometimes, “when you look at their interpretations, it’s pretty clearly contrary to what the statute says,” Mr. Noble said.

For example, the three Republicans said that using Mr. Obama’s voice in a commercial and referring to the White House would not be making reference to a “clearly identified” candidate, a test that triggers restrictions on spending and donations.

Value judgments

Republicans say the commissioners are standing up for free speech, and despite previously advocating for disclosure, Mr. McConnell has recently said that revealing names of donors amounts to the publication of an “enemies list” that targets donors for harassment.

Mr. Brumas declined to comment on whether the senator was satisfied with the commission’s performance, but said he would not characterize him as opposed to enforcement of campaign finance law.

“What I would say is that he’s a supporter of free speech,” he said.

Mr. Noble said such value judgments are the province of legislatures and courts, not enforcement panels.

“The problem with that is it’s not up to the commissioners of a regulatory agency to revisit interpretation of the law,” he said.

In some ways, the heightened party discipline mirrors that in Congress, Mr. Noble said.

“There’d always be the danger they’d split on a hot-button issue, but on both sides of the aisle there was an identity with the agency itself. They understood the agency had to function. Sometimes it was 6-0, sometimes it was 4-2, but there was always at least a commissioner who was the swing vote,” Mr. Noble said.

• Luke Rosiak can be reached at lrosiak@washingtontimes.com.

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