Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy
Curry, Rebecca, Suffolk University Law Review
IV. THE JUDICIALIZATION OF CAMPAIGN FINANCE POLICY AFTER 1974
As Congress set out to revise campaign finance policy again in the wake of Watergate, lawmakers seemed to put a priority on overriding the recent judicial rulings that had increased costs and reduced benefits for incumbents. Somewhat ironically, the new law would give even more discretion to courts in campaign finance policy. This time, however, the statute harnessed judicial policymaking in a way that would serve incumbents' interests. Indeed, the 1974 FECA contained many features that promised to restore control over campaign finance policy to the elected branches. This Part examines those elements of the law and analyzes the political support behind their enactment.
A. Reining in Legal Enforcement
Legislators had long been aware that an independent enforcement mechanism would be needed if campaign finance laws were to become any sort of meaningful limit on federal elections. Sponsors of campaign finance bills had called for the creation of such an entity as early as 1966, and a unanimous Senate vote authorized a bipartisan FEC the following year; it was only when the House opted not to pursue it that the proposal died. (150) Similar efforts had likewise been made in connection with the 1971 FECA, but ultimately rejected. (151) Thus, it was not for lack of imagination that there was no independent regulatory agency in charge of campaign finance policy before 1974. Rather, lawmakers seem to have resisted this option out of a desire to keep campaign finance enforcement closer to home, with the legislative staff.
When the 1974 Amendments authorized Agency enforcement of campaign finance law, they did so with an FEC that was much more politically encumbered than the traditional independent regulatory commission. (152) First, the Agency's policymaking power was hamstrung by virtue of its even-numbered board. (153) And, initially, the FEC's six members were to be appointed jointly by all three elected bodies, with the House, Senate, and President nominating two commissioners each. (154) (This appointment scheme was ruled a violation of separation-of-powers principles in Buckley v. Valeo) (155) The Clerk of the House and Secretary of the Senate also sat on the Commission, as nonvoting members, until that too was found to violate constitutional prerogatives in the mid-1990s. (156) Further legislative oversight was guaranteed by controls on both the Commission's budget and its rulemaking. Thus the Agency was denied multi-year funding, and instead has always had to present its budget to Congress annually. As Congressman Wayne Hays, the Chair of the House Administration Committee, informed the first FEC Chair at the time, this was explicitly to prevent the Agency from establishing too much independence from Congress. "You're not going to set the ground rules," he said. "As chairman, I'll tell you. You're coming back every year for an authorization." (157) Finally, from the FEC's inception until the practice was ruled unconstitutional in 1983, Congress subjected the Agency's regulations to legislative veto. (158) While the Agency was obviously different from the legislative staff oversight characteristic of the past policymaking structure--and was therefore, technically, a delegation of campaign finance policy--it was much more responsive to incumbent interests than enforcement via class action suits or even by the DOJ. When Congress vested this body with primary jurisdiction to enforce FECA, it returned to a more direct policymaking structure for campaign finance. (159)
More subtly, the 1974 Act reinstated political control over enforcement by changing what had been criminal provisions in the earlier FECA to civil ones. (160) Not only did this take the GAO and the DOJ off the front lines of campaign finance law enforcement, it also critically undermined private litigants' jurisdiction to pursue their own allegations against federal candidates. …