Last July, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) launched their latest salvo in the campaign reform wars in the form of legislation calling for replacement of the Federal Election Commission, which Feingold lampooned as “the Failure to Enforce Commission.” Over the years, we’ve been critical of the FEC, too, but before replacing it we’d like to see full hearings on the McCain-Feingold proposal. Not one has been held or even scheduled.
The new reform legislation would abolish the current six-member FEC and create a three-member Federal Election Administration built along the lines of the Securities and Exchange Commission and the Environmental Protection Agency, with basic enforcement work done by independent administrative law judges. No appointee to the FEA could come from the FEC, have been a federal candidate or officeholder, or worked for one or been employed by a political party.
The demand for change is based on the perception that the current commission, consisting of three members from each party, invariably will deadlock on important cases and never will carry out stiff enforcement action. It’s also based on the notion that FEC appointees are too close to the political parties they represent and can’t act in the public interest.
The question of whether to revamp the agency arises anew this week because, as Roll Call reported Monday, the two newest members of the FEC have recused themselves on nearly two-dozen enforcement matters during their tenure of just more than a year. FEC critics say this demonstrates the weaknesses of the agency’s appointment process.
Democratic Commissioner Ellen Weintraub, formerly a lawyer with the firm Perkins Coie, has recused herself from at least 14 of the FEC’s 117 enforcement actions since she joined in December 2002. Republican Michael Toner, former chief counsel to the Republican National Committee and the top lawyer with the Bush-Cheney 2000 campaign, opted out of at least eight out of 200 cases since March 2002. FEC critics say that the two are behaving ethically, but that their need to recuse themselves demonstrates that FEC appointees are too close to the two parties.
There is a strong opposing side in this debate. Weintraub points out that it’s wise to have enforcement officials who understand how campaigns work, and she disputes the notion that one-time partisans can’t behave impartially. FEC Chairman Brad Smith argues that three-to-three, party-line deadlocks are actually rare and that creating a three-member commission might give one party an unfair advantage.
This dispute needs thorough airing and debate. The place to begin is the Senate Rules and Administration Committee. We urge Chairman Trent Lott (R-Miss.) to get the ball rolling.