Americans expect their elections to be conducted in a fair, honest and lawful manner, but the Federal Election Commission (FEC) – the agency charged with ensuring election integrity – is embarrassingly dysfunctional. Senator John McCain (R-AZ) regularly refers derogatorily to the FEC as the “the little agency that can’t” or the “muzzled watchdog,” for good reason. By design it was structured to be ineffective and glacially slow. And now thanks to Citizens United, we are seeing a significant surge in complaints filed with the FEC and a virtual certainty that most of these complaints will go nowhere.
Put simply, the Commission is excessively partisan and political, the enforcement process is cumbersome and inefficient, and the penalties levied are too anemic to deter violations of the law. To be sure, Congress has a vested interest in preventing any reform of the FEC; members, after all, would be the targets of many enforcement actions.
Now more than ever, the health of our democracy depends on whether Congress can muster the will to fix this broken agency. Reform of the FEC should be a top priority for the President and for Congress.
As it currently exists, the appointment process only fuels the partisan nature of the Commission. In Buckley v. Valeo, the Supreme Court made clear that the Constitution requires the president, not Congress, to appoint commissioners. In reality, an informal understanding between the president and the Congress exists whereby the nominees are selected by party leaders. This tacit understanding only enhances the partisan nature of the process, with party leaders nominating commissioners who further their political interests, some of whom are openly hostile toward the very laws they’re charged with enforcing.
The appointment process, however, can only begin with the President. In February 2012, CREW successfully spearheaded a coalition-wide petition that garnered over 25,000 signatures calling on President Obama to nominate new commissioners who will faithfully enforce existing campaign finance laws and close existing loopholes. Remarkably, five of the six current commissioners are serving despite expired terms, and three openly flaunt their routine refusal to enforce existing campaign finance laws, even where the FEC’s professional staff has called for an investigation. As the New York Times editorialized, this is an unacceptable situation.
Our broad coalition still awaits the President’s response as promised by the process established by the White House that clearly states there will be a response when 25,000 or more signatures are submitted on a petition.
As a candidate for the presidency, President Obama promised to appoint commissioners committed to enforcing our nation’s election laws. With the exception of one unsuccessful attempt in 2009, however, he has failed to nominate anyone to replace any of the five lame duck commissioners.
The national scandal at the FEC is the President’s responsibility to address; the agency will not change until the executive branch exercises its authority to nominate new commissioners. It is essential that these nominations be based on merit, skills, qualifications, experience, background and professional reputation. It is also imperative for nominees to have a basic commitment to enforcing the campaign finance laws as written by Congress and interpreted by the courts. Individuals ideologically opposed to campaign finance regulation have no place on the commission.
Nominating commissioners based on merit and qualifications may well create conflict with congressional leaders accustomed to choosing commissioners themselves. Given the completely dysfunctional state of the FEC and the enormous damage that has been done to our campaign finance laws, however, we believe this is a fight worth having.
Pursuant to the Federal Election Campaign Act (FECA), the FEC is run by six commissioners, with no more than three from the same political party. The FECA also requires four commissioners to vote affirmatively for the Commission to proceed on any action. As a result, tie votes deadlock enforcement matters frequently.
As the Washington Post noted some time ago, “time and again partisan standoffs have prevented the Commission from pursuing enforcement actions against major politicians and powerful interest groups, even when the FEC’s general counsel recommends going forward.” This is unacceptable.
Any real reform of the FEC requires an uneven number of commissioners, with one commissioner independent enough to have the ability to break ties. Others have suggested looking to the structure of institutions such as the FBI, which vests significant control in a single director, serving a term unrelated to that of the president who made the appointment. Either of these proposals likely would promote more effective enforcement.
Further undermining the Commission’s efficacy is the inadequacy of the fines levied against guilty parties. Former Senator Bob Kerrey (D-NE) once noted that “the FEC … might levy a $5,000 fine on me three years after the fact … I can raise that in a single night in a campaign event … so that’s hardly what I would call a deterrent against illegal behavior.” Ironically, the Bipartisan Campaign Reform Act of 2002 also known as "McCain-Feingold," dramatically increased the monetary penalties for violations of the FECA.
Unfortunately, the FEC rarely seeks anything close to the maximum penalty. This stems partly from the partisan makeup of the FEC – whereby each side blocks attempts to seek maximum penalties – and partly because a court order is required to impose any monetary penalties. However, the FEC’s track record in getting courts to impose these penalties is rather dismal.
One possible solution would be to create mandatory minimum penalties with real bite. Whatever the solution, Congress must address this ineffectual penalty structure so that violators know that have something to fear when they run afoul of the law.
The FEC’s continued inaction is a threat to the integrity of our elections.
Thanks to Citizens United, corporations and shadowy organizations are increasingly emboldened to skirt the law, yet the FEC is still sitting motionless on the sidelines. Americans saw firsthand during the last campaign cycle an unrelenting flow of money into their state’s elections from out-of-state, secretive political groups. Not surprisingly, the 2012 election season is seeing a dramatic escalation of this kind of scurrilous activity. Unfortunately given the current political volatility, Congress is unlikely to pass any meaningful campaign finance reforms in the 112th Congress.
Nevertheless, there is nothing stopping the president from tapping new appointees with strong and independent enforcement experience to replace the five commissioners whose terms long ago expired, but remain in place awaiting confirmation of their replacements. Once appropriate nominations are made, the responsibility will pass to the Senate to address the FEC scandal. Senators will face a clear choice: vote to confirm new FEC commissioners selected on the basis of merit and qualifications, or vote to perpetuate a system undermining enforcement of the nation’s campaign finance law at a time when there is growing public anger over the money pouring into federal elections. The American people need a strong and functional enforcement agency now more than ever.
 Editorial, That Campaign Promise About Campaigning, April 7, 2012.