THE FEDERAL ELECTION COMMISSION
Implementing and enforcing Federal Campaign Finance Law
INTRODUCTION BY THOMAS E. MANN
The absence of effective enforcement machinery has plagued campaign finance law from the outset. Compliance with the Federal Corrupt Practices Act of 1925 (document 2.4) was notoriously weak, at least in part because no public agency was given the authority, resources, and incentives to administer it. In line with this practice, the Federal Election Campaign Act (FECA) of 1971 (document 2.8) dispersed authority for compliance and enforcement among the Clerk of the House, the Secretary of the Senate, the General Accounting Office, and the Secretary of State for the state where campaign activities took place. As related by Brooks Jackson in Broken Promise: Why the Federal Election Commission Failed (document 8.1), after the Watergate hearings uncovered serious campaign abuses in both parties, Congress passed amendments to the FECA that for the first time created an agency, the Federal Election Commission (FEC), mandated to enforce the law. But Congress had no interest in an independent, powerful FEC. It designed the agency carefully to ensure that it would operate on a tight leash held firmly by its master. Although ostensibly modeled on traditional regulatory agencies such as the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and the Securities and Exchange Commission (SEC), the Federal Election Commission was distinct in at least one crucial respect: only two of its six voting members were to be appointed by the president, the others by leaders of the House and Senate. (The Commission also was to include two nonvoting, ex officio members, the Secretary of the Senate and the Clerk of the House.) The six voting members were to be equally divided between Democrats and Republicans, making it difficult if not impossible for the Commission to move against a campaign in a way that would be seen as injurious to one of the parties. The FEC was given no authority to sanction violators. For criminal prosecutions, it had to refer cases to the Justice Department; for civil penalties, its only recourse was to ask a federal court to impose penalties. Congress also gave itself veto power over FEC rules and regulations, although it lost that power when the Supreme Court declared all legislative vetoes unconstitutional in 1983 ( Immigration and Naturalization Service v. Chadha, 462 U.S. 919 [ 1983]).
The Supreme Court in its Buckley v. Valeo decision ( 424 U.S. 1 [ 1976]; document 3.1) upset these arrangements by ruling unconstitutional the role Congress played in appointing four of the six members of the FEC. The Court stated that the statute violated the Constitution's appointments clause by encroaching on the president's authority to appoint the "Officers of the United States" with the advice and consent of the Senate. (Seventeen years later the D.C. appeals court in Federal Election Commission v. NRA Political Victory Fund [ 6 F.3d 821 ( 1993)] took the additional step of declaring that the presence of the two ex officio members violated the Constitution's separation of powers. Excerpts from the decision are included in this chapter as document 8.2.) In the middle of the 1976 presi