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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.” 

Wertheimer said he and other nonprofits “are going to try to do everything” that they can to increase public pressure for nominees through the end of April, when five of the six commissioners’ terms will have expired. 

“The failure of the FEC to exist for all practical purposes is great for candidates, political operatives, lawyers who represent the regulated community and for donors,” he said. “But it is an unmitigated disaster for the American people and the country’s anti-corruption campaign finance laws.” 

Reiff said that if you put the rhetoric aside, the FEC’s recent decisions mirror similar ones at the Supreme Court, which has knocked down key provisions of campaign finance laws during the past five years. These include Citizens United v. FEC, where the court ruled that corporate funds could be used to run ads for and against candidates during election season.

“I think the FEC is a reflection of the courts right now,” Reiff said. “You basically have five Supreme Court justices who are practically in sync with the Republican commissioners and four who are not.” And that area of agreement is for less regulation of campaign spending, not more.

Democratic Commissioner Ellen Weintraub, who has served on the commission since 2002, said the FEC “is more dysfunctional than it has ever been.”

Weintraub, who often votes in favor of stronger campaign finance regulations, said she believes there is some validity to the arguments by campaign finance reform advocates that the FEC is broken.

“It’s more than rhetoric,” she said. “You can look at the stats on 3-to-3 splits. ... We are splitting more than we ever have.”

Many of the press releases and statements issued by campaign finance groups during the past couple of years have focused on McGahn, a Republican commissioner who often leads debate on behalf of his party. McGahn served as chairman of the commission in 2008.

McGahn said the FEC has made huge strides in recent years in transparency since he and his Republican colleagues have been seated and that many attacks he has received have lacked validity.

“These groups keep making the same petty attacks about not enforcing the law,” he said after the agency’s Thursday meeting. “The law is ultimately what the Supreme Court says it is. My oath is to uphold the Constitution, and the FEC can’t just do whatever it wants.”

McGahn said he does not resent being singled out so frequently by foundation-supported campaign finance groups in their efforts to pass more regulations. “I don’t mind them using me to fundraise,” he said, laughing. “I just wish I could get a cut.”

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