The Federal Election Commission is broken. The agency charged with implementing and enforcing federal campaign finance law often does neither.
But you are unlikely to hear much about this when the House Administration Committee holds a hearing Thursday on the agency’s performance. Only FEC commissioners are testifying — no public interest groups or academics invited.
The terms of five of the six FEC commissioners have expired — yet they continue to sit. Decisive action by President Barack Obama is needed to replace these panel members with new people who will approach their charge responsibly and fairly.
The Administration Committee Chairman Dan Lungren (R-Calif.), a leader in the opposition to transparency on money in politics, seems little interested in how the FEC gutted the nation’s disclosure laws and deadlocked on an unprecedented number of actions. Yet this has been preventing the agency from making decisions — or even enforcing election law.
A broad coalition, including Americans for Campaign Reform, Campaign Legal Center, Common Cause, Citizens for Responsibility and Ethics in Washington, Democracy 21, League of Women Voters, Public Campaign, Public Citizen and U.S. PIRG, has now appealed to congressional oversight committees, requesting that they “investigate and hold hearings on the systemic problems with the Federal Election Commission.” To no avail.
It is highly unlikely that this hearing will be any more fruitful in addressing why the FEC has become a national campaign finance scandal.
FEC decisions must be approved by at least a four-vote majority. Senate Minority leader Mitch McConnell (R-Ky.), a long-time foe of campaign finance laws, realized that he can “appoint” commissioners who oppose the law. When the three Republican FEC commissioners deadlock the vote, no decision can be made. That is what is happening.
Examples of the FEC’s ineffectiveness are legion. The agency often dismisses complaints because of deadlocked votes or promulgates rules contrary to the law.
Deadlocked votes have reached an all-time high. Historically, fewer than 2 percent of all enforcement actions were stymied by deadlocks. Since the appointment of the current GOP commissioners, however, that percentage has jumped eightfold.
There has also been a startling increase in deadlocks on nearly all other agency decisions, often incapacitating the FEC from even offering advice to candidates.
Consider the recent enforcement actions, including one involving the November Fund, a 527 group organized by the U.S. Chamber of Commerce that refused to register as a political committee, and another involving a Democratic congressional candidate who neglected to disclose 90 percent of his campaign’s donors. All the parties had consented to conciliation agreements or to pay civil penalties — only to have the Republican commissioners refuse those agreements.
The FEC also deadlocked on writing regulations to address the Supreme Court’s Citizens United decision in June. At the same meeting, the panel deadlocked on an advisory request by Facebook on whether its campaign advertising banners are exempt from disclaimer rules. The company was left to decide what to do on its own.
When the panel does reach an agreement, it is sometimes by accident — and with disastrous results, like the 2007 decision to gut the disclosure rules. While the law requires that any group making electioneering communications//JARGON – WHAT IS THIS???// disclose its donors, the FEC proposed narrowing disclosure only to contributors who earmark money for campaign ads.
One Democrat who joined in the vote regretted soon after realizing that few donors earmark funds for specific ads. Too late; the damage was done.
Disclosure of donors funding electioneering communications has been steadily falling — from nearly 100 percent in the 2004 and 2006 elections, to 50 percent in 2008 elections, down to 32 percent in 2010. Outside groups are also exploiting the lack of effective disclosure rules for all other types of campaign ads. Even the new super PACs, which had previously fully disclosed their donors because they are registered committees, have now realized that they too can evade disclosure — by accepting secret donations from shell companies.
Comedy Central host Stephen Colbert mocked this loophole by setting up a shell company — on TV — to hide donations to his super PAC. “Clearly, these (c)(4)s have created an unprecedented, unaccountable, untraceable cash tsunami,” Colbert said, “that will infect every corner of the next election. And I feel like an idiot for not having one.”
But his efforts have not brought any changes. The three Republican commissioners steadfastly refused to revisit the disclosure rule when it was brought up again this year.
These commissioners are carrying out what could be described as “agency nullification,” failing to provide for any effective enforcement of the statutes within their purview.
But don’t expect to hear that at the House committee hearing on Thursday.
Craig Holman is the government affairs lobbyist at Public Citizen. Melanie Sloan is the executive director of Citizens for Responsibility and Ethics in Washington.
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