Academic journal article Harvard Law Review

Eliminating the Fec: The Best Hope for Campaign Finance Regulation?

Academic journal article Harvard Law Review

Eliminating the Fec: The Best Hope for Campaign Finance Regulation?

Article excerpt

The Federal Election Commission has an unenviable task. It regulates the financing of federal elections, pursuant to authority (1) delegated by the very officials whose reelections depend in part on how the FEC regulates. Members of Congress control the FEC's budget, structure, and scope of authority, and can help or hinder its work as they see fit.

In recent years, the FEC has come under increasingly harsh criticism for a perceived inability to monitor and to protect the nation's campaign finance system. (2) Some of the agency's most vocal detractors have been FEC Commissioners themselves. Former Commissioner Ann Ravel has, on multiple occasions, accused her Republican colleagues in print of refusing to enforce violations or to apply sufficient penalties to deter bad behavior. (3) Former Commissioner Trevor Potter has taken similar stances. (4) Commissioner Ellen Weintraub wrote an op-ed attacking former Commissioner Don McGahn, quoting him as saying, "I'm not enforcing the law as Congress passed it." (5) Republican commissioners have defended themselves against these claims of partisanship and said that the agency functions properly, (6) but ideological disagreement among commissioners seems to have turned personal, even leading, famously, to conflict over "whether to serve bagels or doughnuts" at a celebration of the FEC's fortieth anniversary in 2015. (7)

A dysfunctional FEC has implications beyond the breakfast table. The Commission is empowered primarily to conduct administrative rulemaking relating to campaign finance, to issue advisory opinions, and to enforce campaign finance laws. (8) It also administers and coordinates required campaign finance disclosures. (9) The FEC performs adequately in carrying out existing, fairly basic disclosure requirements, (10) but often fails to reach the consensus required for it to pursue an enforcement action or to undertake administrative rulemaking to update disclosure requirements. (11) When it fails to make rules, campaign finance regulations become out of date--unable to keep up with new technologies (12) or shifting Supreme Court precedent. When it fails to enforce the campaign finance laws already on the books, they weaken through desuetude as violations go unpunished and the law bends to accommodate more aggressive practices. (13) These are serious oversights in an election system increasingly awash in untraceable spending. (14)

American political parties are further apart than ever before. (15) The bipartisan FEC's inability to reach consensus is, no doubt, due in part to this context, but structural criticisms of and proposed solutions for the agency have been around since the 1970s. (16) Many recent criticisms of the FEC point to the same flaws identified decades ago: agency capture, enforcement failure, deadlocked commission votes, and partisan loyalty. (17) These have only been exacerbated by increased partisanship. (18) Writing in 1988, Professor Robert Mutch was able to survey significant criticisms of the FEC, but could report that on the Commission "[i]deological conflict [was] rare," and that disagreements between commissioners were typically over interpretive questions and not partisan loyalties. (19) Today, by comparison, the agency itself has identified serious morale problems, including a "[t]one and attitude" among commissioners that was "perceived as poor." (20) The partisan climate and the absence of an obvious standard for analyzing agency inaction make it difficult to judge impartially who is most to blame for today's increase in hostility, (21) but, regardless, the agency is not functioning well.

Though it is an "independent agency," the FEC is hardly independent from congressional influence, and Congress has shown minimal interest, for forty years, in bolstering the agency's ability to regulate campaign finance. It does not fulfill the role that politicians claimed it would when it was created. By failing to do its job, it exacts a high opportunity cost, occupying a space in the regulatory landscape that could be filled by more motivated and functional actors and serving as an exonerating idol for opponents of reform, who can argue that a lack of action demonstrates that all is well in our campaign finance system. …

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