Feb. 12, 2016 SIGN IN | REGISTER

Campaign Lawyers Reject Idea FEC Is Broken

Campaign finance reform advocates say the Federal Election Commission is “broken” and unable to enforce campaign finance laws, but most Republicans and even some Democratic experts say the agency is working just the way it ought to. 

Last month, a group of eight nonprofits that often seek stronger campaign finance rules wrote to President Barack Obama calling the commission so “dysfunctional” that “the FEC itself has become a national campaign finance scandal.”

The criticism from these nonprofits is that the three Republican commissioners — who often vote en bloc — “have paralyzed the agency by consistently blocking enforcement of the laws and repeatedly misinterpreting the laws.” 

But many people who work, file and litigate for campaigns on both sides of the aisle say these attacks are just hyperbole with little legal validity to back them up. 

“There’s no question that there is an ideological divide at the commission, but it does not mean that the agency doesn’t function,” said Marc Elias, a lawyer for Perkins Coie who often works on behalf of Democratic clients before the FEC. 

Elias, who represents the Democratic Senatorial Campaign Committee and some Democratic Senators and Representatives, pointed to rules and advisory opinions that the FEC has issued as indicators that the FEC is continuing to make progress. “Declaring that the agency doesn’t function is not correct and is not useful to the regulated community,” he said.

There is a good reason some of the staunchest defenders of the Republican commissioners are Democrats. Since they were seated in September 2008, these three GOP commissioners have frequently halted fines and greater regulations for Democratic campaigns — often over the protests of some Democratic commissioners.

For instance, in late 2008 Republicans successfully fought against a Democratic tide that did not want to award matching funds to Democratic presidential candidate Mike Gravel. The 4-2 vote in Gravel’s favor gave the former Senator from Alaska, who called his campaign “broke,” a chance to recoup hundreds of thousands of dollars. 

“I was extremely impressed by Chairman [Don] McGahn’s erudition,” Gravel said after the FEC’s 90-minute debate. “My God, he blew me away. Nobody even came close to analyzing it the way he did.”

In addition to sticking up for several Democratic campaigns, the three GOP commissioners also fought Democratic commissioners to drop a lawsuit against one of the largest progressive donors in recent years: George Soros.

“This has been the least partisan commission in my 18 years of practice,” said Neil Reiff, a lawyer who represents almost exclusively Democrats at Sandler, Reiff & Young. “Regardless what party you are in when you come before that commission, you get a fair shake.”

Campaign finance reform groups that are lobbying for FEC appointments said such support for the Republican commissioners by Democratic campaign lawyers is yet another sign of a failing system.

“The problem at the FEC is not a partisan one, it is ideological,” said Fred Wertheimer, founder of Democracy 21, one of the eight groups that sent last month’s letter to Obama. “The fact that the Washington campaign finance lawyers believe that this paralyzed, nonfunctioning agency is doing a great job just simply confirms that the FEC is not doing its job.” 

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