Tear Up the FEC to Create a New, Efficient Agency

Posted May 16, 2008 at 6:27pm

Correction Appended

If the latest mess hasn’t convinced everyone that the Federal Election Commission is an irretrievable disaster, nothing will. While the standoff over nominee Hans von Spakovsky was resolved in typical White House fashion, with the announcement of his withdrawal right before close of business Friday, the months-long standoff served to again reveal in full glory the commission’s fatal flaws. This dysfunctional beast merits being euthanized for myriad reasons.

First, President Bush’s decision to throw current Republican Commissioner David Mason under the proverbial bus, after twice renominating him, is suspect at best. Could it have something to do with the fact that Mason raised legitimate questions about attempts by the Republican’s presumptive presidential candidate to pull out of the presidential public financing system? Could it be Mason’s insistence on at least pretending that the FEC would actually look closely at the difficult issues presented by the unusual loans taken out by the McCain campaign? Mason appears to have failed the administration’s “you’re either with us or against us” test.

Second, the fact that agency charged with enforcing federal campaign finance laws has been inoperable during the entire record-breaking presidential primary season is a national embarrassment. With only two of its six members confirmed, the commission can’t muster a quorum, much less find the four votes needed for official action. This sad state of affairs arose because of a political game of chicken over a nominee who attracted unprecedented opposition.

So what did the White House do get the agency up and running during this period? At the behest of Senate Minority Leader Mitch McConnell (R-Ky.), President Bush refused to budge on the nomination of von Spakovsky, a former Department of Justice official and later an FEC recess appointee. It’s not surprising that the reform community found his nomination abhorrent. He regularly expressed antipathy toward the campaign finance laws he was supposed to enforce. But von Spakovsky’s nomination drew the vehement opposition of a wide range of civil rights groups outraged by the record of politicization and voter suppression he compiled at DOJ. As a result, Senate Democratic leaders rounded up the votes to defeat von Spakovsky, an unprecedented occurrence for an FEC nominee. Now, with the von Spakovsky nomination withdrawn, the commission will apparently soon limp along with a typical group of party hacks.

With all the drama surrounding von Spakovsky, many people haven’t paid attention to President Bush’s other FEC nominees. Would you laugh if I said one nominee was Tom DeLay’s ethics lawyer? Don’t laugh, because it’s true. Don McGahn is a longtime Republican election lawyer who once described the FEC as follows: ‘”It’s not like other agencies because you have … the fox guarding the hen-house. You gonna appoint your guys to make sure you are taken care of. The original intent was for it to be a glorified Congressional committee. That’s the way I see it.” Don’t bet on tough and fair enforcement from this fellow. Despite the opposition of reformers, McGahn, one of the foxes, is likely to sail through.

The other Republican nominee is Caroline Hunter, currently serving on the Election Assistance Commission. There she is known as a dependable party loyalist who previously served as a deputy general counsel at the Republican National Committee and at the White House Office of Public Liaison.

So on the Republican side, the apparatchik nominees up until Friday were: a guy who was up to his ears in DOJ politicization scandals, another who is linked with the party’s disgraced House leader and the NRCC, and a woman who served at the RNC and the Bush White House. All share McConnell’s hostility toward the current statutes governing federal campaigns and campaign finance regulation in general. The FEC seems be one federal commission where publicly opposing the laws a commissioner is constitutionally bound to enforce is not a disqualification.

Are the Democrats any better when it comes to the FEC? No. The nominees are holdover Commissioner Ellen Weintraub, who came from the political law practice of Perkins Coie, headed by Bob Bauer, a longtime Democratic lawyer who represents the Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee, as well as the Sen. Barack Obama’s (D-Ill.) campaign. Then there’s Steven Walther, Reid’s personal lawyer, and Cynthia Bauerly who works for the DSCC. Bauerly replaces Robert Lenhard, who recently withdrew after his recess appointment expired. As associate general counsel for the American Federation of State, County and Municipal Employees, Lenhard led the union’s challenge to overturn the Bipartisan Campaign Reform Act, a law that he was subsequently charged as a commissioner with implementing and enforcing.

With the von Spakovsky impasse resolved, it is likely the remaining nominees will fly through Senate confirmation. Then, after the FEC has doled out the presidential public funds, the commissioners will settle into their expected roles, placing protection of party interests above the public interest. It’s a heck of a way to do business.

There is a better way. Next year, Congress should deep-six the current FEC and replace it with a new agency as proposed in pending bipartisan legislation. Instead of a deadlocked commission, a new agency would consist of a chairman and two other members appointed by the president from different parties. The chairman, serving a 10-year term, would have broad powers to manage the agency. This structure will help avoid the deadlocks that have plagued the FEC and prevented proper enforcement, resulting in travesties such as the soft-money abuses by the presidential candidates and party committees in the 1996 elections and allowing the problems posed by 527s to explode. The new agency could impose civil monetary penalties or issue cease-and-desist orders in the event of violations, and enforcement proceedings would be conducted before impartial administrative law judges.

The resolution of the von Spakovsky stalemate was certainly overdue. But the stalemate is a symptom of the underlying problem intentionally built into the statute. The FEC was designed for deadlock. In theory, the 3-3 party split is to ensure balance and fairness. In reality, it ensures either partisan warfare that prevents enforcement action or partisan collusion such as that seen at the height of the now-banned soft-money system.

Until the FEC is trashed lock, stock and barrel, it will continue to earn its mocking moniker as the “Failure to Enforce Commission.” The public’s business will take a back seat to each party’s ongoing effort to seek partisan advantage. And the commission will continue to be the most “successful agency in town” –– doing, as McGahn has noted, exactly what it was designed to do from the beginning: nothing much useful. Reform is not enough. Starting over is the only option.

Meredith McGehee is policy director of the Campaign Legal Center. She also heads up McGehee Strategies, a public interest consulting business.

Correction: May 21, 2008

The article incorrectly reported former Federal Election Commissioner Robert Lenhard’s position at the American Federation of State, Municipal and County Employees and his role in arguing a court challenge to the Bipartisan Campaign Reform Act. He was associate general counsel at the union and his work on the appeal to BCRA ended before the case went to the Supreme Court.