FEC’s status quo is hazardous — proposed legislation would help fix it

At the hearing on H.R.1 before the House Oversight and Reform Committee, opponents of the bill set their sights on the bill’s reforms to the Federal Election Commission (FEC), charging that these changes would allow a dangerously partisan takeover of our nation’s campaign finance regulator. As someone who used to work at the FEC, I could not disagree more.

Right now, the FEC is evenly divided between Democrats and Republicans and notoriously dysfunctional. It deadlocks on whether to pursue most significant campaign finance violations — often after sitting on allegations for years without even an investigation. Its process for issuing new rules has virtually ground to halt. The agency took five years just to delete the two regulations struck down by the Supreme Court in Citizens United, the Supreme Court decision that kicked off the super PAC era in which we live today.

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And the commission is beset with management problems. There hasn’t been a permanent general counsel (the Commission’s chief legal officer and one of its two most important staff positions) in more than five years. Morale among rank-and-file is lower than in most other places in the federal government. H.R. 1 would go a long way towards addressing these issues.

 

H.R. 1 would overhaul the FEC by reducing its six commissioners to five, with no more than two for each major party and one independent. One of these commissioners would be designated by the president to serve as chair, responsible for hiring the agency’s staff director, submitting its budgets, and running it on a day-to-day basis. These changes would bring the FEC more in line with how most independent federal agencies run, except that, unlike those bodies, the president’s party would never have a majority. H.R.1 would also set up a bipartisan, blue-ribbon panel to vet potential nominees and make public recommendations to the president, which is not the usual practice for other agencies.

The bill’s critics argue that even with these safeguards, it would still be easy for one party to weaponize the FEC. They suggest that the independent on the Commission would likely be a wolf in sheep’s clothing — that is, nominally independent but really a partisan. They also suggest that a presidentially appointed Commission chair would be tantamount to an “election czar,” with vast power to persecute the president’s opponents.

Presumably such nominees would not survive bipartisan vetting, so for these scenarios to come to pass, both the president and senate would have to be willing to disregard this process.

What H.R.1’s critics miss is that these dire predictions could just as easily come to pass under the FEC’s current structure. As a legal matter, the president has constitutional authority to nominate whomever he wants to serve on the FEC, provided no more than three of the nominees are affiliated with any one party. There is no bar on a president nominating a “Democrat” who just last week was registered as a Republican, or vice versa. The tradition of picking three commissioners closely aligned with each major party is just that, a tradition. By implicitly relying on political actors to refrain from the most extreme types of partisanship, H.R.1 is breaking no new ground.

It should come as no surprise that those crying loudest about a “partisan takeover” of the FEC are the same people who generally oppose all campaign finance limits (which the vast majority of Americans support). For the most zealous proponents of unfettered campaign spending, having no cop on the beat may seem like a pretty good deal. I think they are wrong. If we are going to have campaign finance rules, they should be enforced. If we don’t want them, they should be repealed.

A functional FEC might actually loosen some of the rules critics complain about most, rather than leaving them on the books to confuse everyone but the most sophisticated players. Everyone should want this level of clarity — which helps explain why similar FEC reform proposals have garnered bipartisan support in the past.

Personally, I generally support stronger campaign finance rules (though not always), but I respect that many people who would make excellent FEC commissioners have a different perspective. I would much prefer a functional FEC run by someone who might not share my views to the gridlocked body we have now. I know I am not alone.

Daniel I. Weiner is senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law. Weiner previously served as counsel and then senior counsel to a commissioner on the Federal Election Commission from 2011 to 2014.