FEC Far From an ‘Irretrievable Disaster’

Posted June 16, 2008 at 3:14pm

Meredith McGehee’s May 19 Guest Observer was filled with vituperative attacks and outright lies about the Federal Election Commission and its commissioners (“Tear Up the FEC to Create a New, Efficient Agency”). She is entitled to her own opinions, but not her own facts.

The imaginary claims she conjures up of a “deadlocked” FEC that supposedly fails to enforce the law may help raise the donor contributions needed to pay her salary at the Campaign Legal Center, but the record of the agency shows that her claims are a fantasy.

The FEC’s publicly available records reflect that in enforcement matters, the commissioners split their votes in less than 1 percent of all cases — in other words, in only a very small number of cases do the commissioners deadlock, leaving the agency unable to proceed. In my experience on the commission, the vast majority of votes on enforcement matters were unanimous — the malicious claim that “partisan” commissioners are just party hacks who do not enforce the law is completely false.

In the two years I was at the FEC, we collected $6.2 million in civil penalties in 2006, the largest amount in the agency’s history, and $5.5 million in 2007, the second largest amount. We also adopted 12 new regulations, issued 64 advisory opinions and completed 48 audits of political committees, a true testament to the commissioners’ bipartisan work. The average time from a complaint arriving at the FEC to the case being investigated, reviewed by the commissioners, a civil penalty imposed, and the case closed was about 14 months. As anyone with actual prosecutorial experience would know, that is a very quick turnaround time for a government law enforcement agency. All of these facts completely refute McGehee’s untrue claim that the FEC is “dysfunctional” and an “irretrievable disaster.”

What the Campaign Legal Center and McGehee have absolutely no concern about is that the FEC is regulating and enforcing the law in one of the most sensitive areas of our democracy. The campaign process — from the candidate who decides to run for office, to the individual citizens, organizations and political parties who support or oppose that candidate — involves the exercise of fundamental rights under the First Amendment. The Supreme Court has recognized that the constitutional guarantees of the First Amendment have their fullest and most urgent application to the conduct of campaigns for political office. When we legislate in the area of federal campaigns, we inevitably are regulating and restricting political speech, political association and the ability to lobby the government on issues of importance.

McGehee personally attacks my qualifications and motives and those of the Democratic commissioners I served with — Ellen Weintraub, Robert Lenhard and Steve Walther. Contrary to her assertions, all of the commissioners carried out their responsibilities to enforce the law — and the publicly available records of the agency prove that. We did not always agree on the meaning of the provisions of the Federal Election Campaign Act, or the regulations issued by the FEC, but that is the nature of complex legal issues — and the FECA statute and the FEC regulations are extremely complex (the regulations alone are 400 pages).

What I did see at the agency was a consistent effort by all of the commissioners to balance our duty to enforce the law and yet not intrude into constitutionally protected activities. The structure of the FEC, which McGehee criticizes, requires four of six commissioners to agree to take any action. Building consensus among the commissioners on what the statute and the regulations allow is the best guarantee that political activities are not unconstitutionally curtailed, or that partisan considerations result in unfair prosecutions.

It is bad enough to have a federal agency making decisions on what political speech and activity is allowed under the law. The only thing that could be worse would be to change the FEC as proposed by McGehee so you have one individual with “broad powers to manage the agency.” Such an individual would have no check on his power — just like the special prosecutors that Congress properly finally got rid of. The current requirement for commissioners to reach consensus provides a check on the otherwise unbridled power of the FEC.

Even worse is her proposal to give the FEC the power to “issue cease-and-desist orders.” Anyone who believes in political liberty should shudder at the idea of giving a federal bureaucrat the administrative power to order a candidate (or an ordinary citizen) to cease his political activity in the middle of an election. Such power to directly interfere with the election process would be ripe for abuse. How would a candidate who lost an election because of such an order be remedied by a court? Only someone with a completely cavalier attitude toward the First Amendment could possibly propose such a travesty.

What is really going here is not the supposed inefficiency of the FEC, or the untrue claims about it not enforcing the law. It is simply that the campaign “reformers” want more severe restrictions and penalties on political activity. They have no First Amendment concerns over the curtailment of the right to speak, associate and engage in independent activities on important political issues and elections. They will not be happy until they get a system that allows them to immediately censor anyone whose political speech they do not like, and to restrict political activity with which they disagree.

Of course, admitting their animosity toward First Amendment rights would not look good, so they personally and vindictively attack the professional qualifications and personal motives of anyone who disagrees with them, including the most recent nominees. It is such tactics that have coarsened our politics and made it virtually impossible to have civil discussions in Washington on important issues.

Hans von Spakovsky is a former member of the Federal Election Commission and a former counsel to the assistant attorney general of civil rights at the Department of Justice.