The partisan Federal Election Commission

In an unexpected twist, congressional Republicans Darrel Issa (R-Cal.) and Candice Miller (R-Mich.) have teamed up with at least one Republican colleague at the FEC in an effort to tie the agency to the ongoing story of whether high-level IRS staff inappropriately targeted the tax-exempt applications of groups based on partisanship. An email exchange from FEC staff to IRS staff requesting public information about the tax status of a conservative political organization prompted accusations of collusion between the two agencies for conspiring to persecute conservatives.

Republican FEC Commissioner Don McGahn recently went on the airwaves fueling the notion that the government is targeting groups for political revenge and shared more previously undisclosed emails between FEC and IRS staff that, in his words, “could be benign or could be more sinister.”

This conspiracy theory could well have an ulterior motive: to promote new FEC enforcement guidelines that would make it very difficult for the agency to investigate violations of campaign finance laws.

ADVERTISEMENT
The FEC is a six-member commission, three Democrats and three Republicans that can only make decisions by majority vote. The members are essentially selected by the majority and minority leaders of the Senate, then nominated by the president and confirmed by the Senate. Senate Minority Leader Mitch McConnell (R-Ky.) realized as early as 2008 that the campaign finance laws can be rendered impotent if he selects three commissioners who decline to enforce the law.

This is largely what has happened. Since the appointment of today’s Republican bloc of commissioners in 2008, the number of deadlocked votes on enforcement actions has skyrocketed nearly 10-fold, from fewer than 2 percent through the entire history of the agency to about 19 percent in 2012.

But the Commission is soon due for a change in membership. So, departing Commissioner McGahn has proposed procedural changes that would systemically hinder enforcement actions. Under the proposed enforcement rules, unless a majority of the Commission approves beforehand, FEC investigators would be prohibited from: (i) viewing public resources in conducting their investigations, such as Web pages, news reports and social media sites, and (ii) sharing information with the Department of Justice (DOJ), which handles criminal investigations of campaign finance scandals. The result would be to hobble the ability of FEC staff to determine whether an investigation is warranted, and to interfere with the ability of DOJ to pursue its own investigations.

The new “gag rule” has so far been stymied, perhaps not for long.

The Republican bloc has the upper hand. One Democratic commissioner left in February, leaving three Republicans and two Democrats on the Commission.

President Barack Obama nominated two new FEC commissioners who would bring the agency back to partisan balance, but these nominees are not likely to be confirmed for another month. When the Commission delayed a vote on the enforcement changes last month, Republican House Administration Chairman Miller roundly condemned the agency. Meanwhile, several Democratic senators, including Senate Rules Committee Chairman Charles Schumer (D-N.Y.), joined the fray, sending their own letter urging the Commission to hold off any rules changes until after the two new nominees are confirmed. What was once an ideological divide within the FEC has now become pure party politics.

The two remaining Democratic FEC commissioners need to recognize the partisan power-play at stake and take appropriate action. If it is evident that the Republican bloc is going to force a vote on the proposed enforcement guidelines without a full Commission present, the two Democrats could simply not show up at the next meeting, denying quorum and any agency decision on the matter.

Rendering the FEC incapable of making a decision may not be the noblest action, but it would only be short term and it is, after all, established practice – a practice hopefully a new Commission will someday reconsider in a less partisan atmosphere.

Holman is government affairs lobbyist for Public Citizen focusing on money in politics. Gilbert is director of Public Citizen’s Congress Watch.