This is getting ridiculous. After April, all but one of the six commissioners on the Federal Election Commission will be sitting with expired terms. Half the commission had their terms expire two years ago. Yet, there they sit — voting in an unprecedented number of 3-to-3 partisan deadlocks, preventing the elections agency from making decisions, offering advice or even enforcing the law.
The Federal Election Commission is broken. What should alarm us is that this is the agency that is supposed to monitor our elections and disclose who is funding which campaigns. Sadly, the FEC is barely fulfilling its mission — and the agency is closing its eyes just as we are entering the 2012 election cycle, which is likely to see spending hit more than $3 billion in the onslaught to buy the White House, fueled by secretive and unlimited corporate cash.
The single greatest reason the FEC is now unable to do its job is the ideological dogma of some of its members.
The appointment process for FEC commissioners has been turned on its head, allowing Senate Minority Leader Mitch McConnell (R-Ky.) to appoint a Republican bloc of commissioners dedicated to tying up the law. Under the Constitution, the president nominates commissioners, subject to confirmation by the Senate. In reality, the president accepts for appointment three Republicans recommended by the GOP leader and three Democrats recommended by the Democratic leader. McConnell has made no secret that he has never met a campaign finance law that he liked, not even simple disclosure requirements. While McConnell cannot win in Congress — or in the public debate — his battle to end transparency and limits on money in politics, he has figured out that campaign finance laws can be nullified by a hostile FEC. So, McConnell appointed three Republican commissioners — Don McGahn, Caroline Hunter and Matthew Petersen — who are marching in lock step to neuter the law.
Decisions by the FEC must be approved by at least four commissioners. When the three-member Republican bloc votes against enforcement, the agency’s hands are tied. And that is precisely what is happening.
Historically, less than 2 percent of all enforcement actions were stymied by deadlocked votes. With the appointment of the new Republican bloc of commissioners, all that changed. In 2009, the percentage of deadlocked votes on enforcement actions skyrocketed, with 16 percent of all enforcement actions stalled that year and 11 percent in 2010.
Many of these deadlocks amount to nothing less than an abrogation of the law. In several recent enforcement actions, for example, all parties had consented to conciliation agreements and/or to pay civil penalties. But the Republican commissioners chose not to accept the conciliation agreements.
In the case of the November Fund, a 527 group created by the U.S. Chamber of Commerce that spent heavily on campaign ads but refused to register as a political committee, the Republican commissioners simply refused to approve any enforcement action. In the case of a Democratic Congressional candidate who failed to disclose 90 percent of the campaign’s donors, the Republican commissioners blocked the plea bargain and returned the civil penalty check to the campaign committee.
These are just a few of the cases prevented by deadlocked votes. Over the past two years, there have been at least 62 enforcement actions blocked by agency deadlocks.
The FEC has effectively dismantled much of our disclosure law as well. While nearly 100 percent of outside political groups disclosed the sources of funds used to pay for campaign ads in the 2004 and 2006 elections, the disclosure figure has since plummeted. Public Citizen found that of the 308 groups that reported spending money on electioneering communications or independent expenditures to influence the 2010 elections, only 166 (53.9 percent) provided any information about their funding sources.
Today’s loss of transparency of money in politics is largely due to a new, narrow interpretation by the Republican commissioners of who has to disclose what. In a recent statement, the commissioners opined that electioneering groups should only have to disclose those donors who earmark their money for a specific ad, aired in a specific race— which very few donors bother to do.
President Barack Obama has the means to fix the FEC. The president could — and should — follow his constitutional mandate to nominate commissioners of his own choosing who are diligent and professional, and then seek confirmation from the Senate. Obama has so far chosen instead to avoid the political fight that would result with McConnell.
But the 2012 elections are right around the corner. The spending spree of secretive corporate slush funds that we saw in 2010 was just a trial run. We cannot allow the FEC to continue shirking its responsibilities in the face of the unprecedented election spending. The credibility of the 2012 elections is at stake.
Craig Holman is the government affairs lobbyist for Public Citizen.