Ironically, the same issues that gave rise to the establishment of the Federal Election Commission (FEC) – particularly the lack of effective enforcement of then-existing campaign finance laws – are at the heart of today’s concerns about the FEC.

The FEC is viewed as a weak agency, structured by Congress to be slow and ineffective, composed of commissioners whose appointments are tightly controlled by the Members of Congress and political parties they regulate, and hobbled by a chronic lack of funds.   In one area only – administering the disclosure laws – is the FEC viewed as having effectively carried out its responsibilities, ensuring that campaign finance information is made available to the press and the public.  But the FEC’s success here only highlights by contrast its more general failures in enforcing and administering the campaign finance laws.

                A regulatory regime is, in the final analysis, only as good as its means for enforcement.  A system of laws, however well crafted, will not work if the laws are not effectively enforced. 

                Among the host of problems with the FEC, three major system issues have severely undermined the agency’s effectiveness:

1.   The FEC was structured to be ineffective. 

It has been said that if the FEC was a car, Congress lavished attention on the brakes and largely ignored the engine. 

Leading up to the FEC’s birth in 1974, many Members of Congress feared that this enforcement agency would become too powerful and ferocious.  Representative Dawson Mathis (D-GA) warned: “We are going to set up a bunch of headhunters down here who are going to spend their full time trying to make a name for themselves persecuting and prosecuting Members of Congress. … Members had better watch their heads once the Commission is established.” 

To ameliorate these fears, Congress structured an agency with a cumbersome enforcement process, an inability to find violations, and a system for deadlocked decision-making on key issues.  To a large degree, Congress designed the FEC to fail as an enforcement agency. 

The FEC is composed of six members, no more than three of whom can be members of the same political party.  In practice, this has meant that the agency has had three Republicans and three Democrats as commissioners. 

This has been a recipe for stalemate and inaction on key questions. While on most matters the commissioners have reached majority votes, on important questions the votes all too often have been cast on a partisan basis, resulting in 3-3 deadlocks.  The deadlock problem is compounded by the requirement, written into the FEC’s statute, that the affirmative votes of four members are necessary for the agency to act.  Thus, 3-3 ties result in inaction

Among the examples of such deadlocks cited in the report (see p. 9) are:

·         The GOPAC appeal – The Commission in 1996 lost a controversial case in the district court against GOPAC, a political group associated with former House Speaker Newt Gingrich (R-GA).  The three Democrats voted to appeal the case but the two Republicans (the third seat was vacant) voted to drop the matter.

·         The Dole/RNC Case – The Commission found that the 1996 Dole for President Committee had received illegal contributions from the Republican National Committee (RNC), but then deadlocked on whether to find that the RNC had made the contributions.  The three Democrats voted for the FEC general counsel’s recommendation to pursue an enforcement action against the RNC, while the three Republican commissioners voted against it.

·         The Haley Barbour Case ­– In 1999, the general counsel recommended the FEC investigate whether the RNC and a related non-profit corporation called the National Policy forum accepted foreign donations and used those to influence federal elections.  The three Democrats voted in favor of the general counsel recommendation and the three Republicans voted against it.

·         The September 11th advisory opinion – Following the September 11, 2001 terrorist attacks, the Democratic National Committee (DNC) asked the Commission to liberalize its soft money accounting rules on a temporary basis to allow the parties more flexibility in the wake of the interruption in their fundraising.  The RNC opposed the request.  The three Democrats voted in favor of the DNC’s request, while the three Republicans opposed it.

The politicization of FEC votes is also illustrated by cases where commissioners of both parties have joined together to reject the recommendations of their professional staff, thereby serving the interests of both parties.  Examples cited in the report (p. 11) include:

·         The 1996 presidential audits – After the 1996 presidential campaign, the FEC auditors and general counsel recommended that the Commission find that the Dole and Clinton presidential campaigns had received illegal soft money contributions from their respective parties in the form of coordinated “issue ads.”  The Commission voted 6-0 to reject the advice of the professional staff and not require repayments of public funds from the presidential campaigns.

·         The 2000 joint fundraising committees – In response to a complaint, the general counsel recommended that the Commission find reason to believe that various Democratic and Republican Senate campaigns in the 2000 election violated the law by forming joint fundraising committees to raise soft money, which was used to promote their Senate elections.  The Commission voted 5-1 to reject the recommendation, with one Democrat, Commissioner Scott Thomas, voting to proceed.

The structural problems of the FEC are compounded by the extraordinarily cumbersome enforcement procedures built into the statute – what Congressional Quarterly referred to as “procedures mandated by Congress and designed to protect incumbents and challengers from overly aggressive investigators.” 

Equally constraining have been the powers denied to the agency.  The Commission cannot make its own findings that a violation occurred, cannot seek court injunctions to halt illegal activity while it is occurring, and cannot conduct random audits of campaigns.

In short, Congress created an enforcement agency that, on its own, can do little to actually enforce the law.  The only power to act that the agency has at the end of its elaborate enforcement proceedings – which often take years to complete – is to file a civil lawsuit against a respondent and thereby initiate an enforcement action in court, which itself will likely take additional years to complete. 

Unlike many other administrative agencies that possess their own enforcement authority, such as those that regulate banking, securities trading, and surface mining, the FEC has been deprived of any actual powers to find violations and impose penalties.

                These structural problems are exacerbated by the fact that Congress granted the FEC exclusive civil jurisdiction over all enforcement of the federal campaign finance laws.  No matter how dilatory the agency’s proceedings, complainants are barred from seeking direct civil enforcement of the law through the courts.  All complaints must be filed with the FEC and the FEC has exclusive civil authority to act on them. 

See Exhibit 1 (pps. 49-57) for a detailed examination of the structural problems with the FEC.

2.         The commissioners appointed to the agency have been chosen on the basis of their political allegiances rather than their qualifications and commitment to effective administration and enforcement of the law.

The FEC is a classic example of a “captured” agency – one that has become attuned to serving the interests of the community it is supposed to be regulating.  In this instance, the “regulated community” comprises those elected officials and party leaders who have the power to appoint the FEC commissioners in the first instance. 

When Congress first created the agency, it attempted to ensure that it retained direct control over choosing the commissioners to serve on the agency.  The 1974 statute that created the FEC established a system where the leaders of Congress could actually appoint four of the six commissioners. The President was given the power to appoint the other two commissioners. 

In 1976, however, the Supreme Court in the Buckley v. Valeo case threw out this system, as a violation of the President’s appointment authority in Article II of the Constitution.  The Court found that because the commissioners exercise administrative and enforcement powers, they are “officers” of the United States, and must therefore be appointed pursuant to the provisions of Article II, which require nomination by the President and confirmation by the Senate.

Congress then established a new appointments process in 1976 by amending the statute to provide that, as a formal matter, FEC commissioners are to be appointed the same way as members of other administrative agencies – nominated by the President and confirmed by the Senate.

Successive Congresses and Presidents, however, have simply conspired to do in practice what the Court said should not be done.  As National Journal has noted, “Although the Buckley arrangement still stands, the nomination process in practice resembles the old version – with the president usually deferring to Congress and to the political parties.”  

In the few instances where the President has objected to a choice promoted by Congress, the congressional leaders have usually insisted on their nominee, and have usually won.

Few FEC commissioners have come to the agency with a background in enforcing laws.  Instead, most commissioners have come from the community that the FEC is responsible for overseeing – Congress, the political parties, the campaign finance defense bar or other players in the campaign finance system.

The appointment of Michael Toner to the agency in 2002 illustrates the problem.  Toner served as the general counsel to the Republican National Committee prior to his appointment to the FEC, and before that he was counsel to the Bush for President campaign committee.

The partisan splits on key issues that have occurred, among other things, reinforce the notion that the parties and their elected officials expect their FEC appointees to protect their partisan interests.

The most telling example of how much control Congress wields over FEC appointments was illustrated by the appointment in 2000 of Bradley A. Smith as a commissioner. The Smith case showed that an avowed opponent of the federal campaign finance laws – an individual who had called the laws unconstitutional and urged their repeal – could be forced onto the Commission by his Senate sponsors over the stated objection of the president, who nevertheless nominated him.  After months of resistance, President Clinton named Smith to the Commission after Senate Republican leaders insisted on the nomination. 

The inappropriateness of Smith serving on the Commission was only confirmed when in February 2002 he actively participated in the efforts being undertaken in the House of Representatives by reform opponents to kill pending campaign finance reform legislation.  Smith joined with another member of the Commission, FEC Chairman David Mason, who has also been hostile to the campaign finance laws. The two commissioners injected themselves into the battle underway on the House floor on the Shays-Meehan bill, providing assistance to House Republican leaders who were working to defeat the bill.

See Exhibit 2 (pp. 59-69) for other examples of how the politicized quest for the “right stuff” in Commission appointments renders gridlock and partisan decision-making.

3.            Congress has abused its budget and oversight authority over the FEC to hobble the agency’s operations.

Congress has interfered with and undermined the operation of the FEC in numerous ways: it has cut its budget, tried to fire key staff officials, and launched intrusive, unjustified audits and investigations of agency practices.   

The impact of the harassment is clear, as Washington Post columnist David Broder put it in 1995, because “the easiest way to gut regulation is to hobble the regulator.”

Former FEC Chairman Trevor Potter has noted the inherent conflict in having Congress control an agency whose mission is to oversee Members of Congress: “Many regulated entities would rather their regulators went easy on them.  But not many regulated entities actually get to vote to do that.”

Most obviously, Congress has chronically under-funded the agency.  In so doing, it has deprived the agency of the resources necessary to conduct effective enforcement and administration of the law.

Commissioner Scott Thomas illustrates this point in a law review article by noting that the Commission’s budget has lagged far behind the growth of its work.  Although campaign spending on federal elections rose by 256 percent from 1980 to 1996 – from $768 million to $2.7 billion – the Commission’s staff increased only 14 percent in the same time period, from 270 fulltime equivalent staff, to 308.5.  Staff size actually declined in 1998.

Congress has handcuffed the enforcement process by limiting the number of attorneys available to work on enforcement matters.  According to Congressional Quarterly, the FEC had only 26 enforcement attorneys working in 1997, down from 32 the previous year.  In 1999, it had only about 24 attorneys available to handle enforcement matters.  More than two-thirds of the FEC’s pending cases were “inactive” – meaning that they were awaiting an available attorney to work on them.

In 2001, the FEC still had only about 27 staff attorneys available to take assignments.  As of November 2001, 54 out of 135 cases on the Commission’s docket were unassigned for lack of staff, and therefore “inactive.”

By comparison, Commissioner Thomas notes that the Department of Justice had assigned more than 125 staff attorneys to the investigation of the 1996 campaign finance scandal, more than the FEC has working in the entire Office of General Counsel on all matters, including its own investigation into the 1996 election.

As Commissioner Scott Thomas said of the agency’s lack of resources, “We’re already at the point where our enforcement resources have dwindled, and we can now [pursue] only about 30 percent of the cases in our enforcement division.  At a certain point, people will just stop complying with the law altogether, because they don’t fear any FEC action.” 

Commissioner John McGarry made a similar point in 1997: “The situation is deteriorating by the day.  It’s a pathetic state.  We will have to dismiss cases wholesale.  We have no other choice.”

The agency’s budget problem has eased in recent years with the departure from Congress of Rep. Robert Livingston (R-LA), who served as Chairman of the House Appropriations Committee from 1995 through 1999, and had long worked to cut the agency’s budget. 

Congress has also used audits and investigations in an effort to intimidate the agency.  Both in 1995 and in 1998, Representative Livingston, launched major audits of the FEC.  The audits disappointed congressional critics of the FEC by largely exonerating the agency from suspected wrongdoing, but they nevertheless diverted the agency’s energy and funding, and sent a clear signal that efforts at strong enforcement would be subject to congressional retaliation. 

See Exhibit 3 (pp. 71-80) for a comprehensive survey of Congress’s budget freezes and slashes, intimidation of FEC staff, and investigative assaults.

FEC Is Responsible for Creating Serious Campaign Finance Problems

The FEC itself bears the primary responsibility for creating serious problems in the campaign finance system.  Nowhere is this better illustrated than in the story of soft money in American politics.

Little more than a system for cheating on the federal campaign finance laws, soft money has reintroduced into federal elections, on a massive scale, the unlimited and unregulated contributions that federal law explicitly prohibits in federal campaigns to prevent corruption and the appearance of corruption.

The soft money problem is a creation of the FEC, not the Congress.

In the 1970s, the FEC opened the door to the use of soft money to influence federal elections through the agency’s administrative interpretations of the Federal Election Campaign Act. 

In the 1980s, the FEC refused, despite repeated requests, to close the door to soft money abuses as the problem grew. 

And in the 1990s, the FEC stood silently by as presidential and congressional candidates, and their political parties, pushed the door wide open and the use of soft money exploded in federal campaigns. 

The New York Times noted about the explosion of soft money in the 1996 presidential campaign: “Had there been an aggressive and vigilant Federal Election Commission, both [presidential] campaigns might not have been able to make a mockery of campaign restrictions enacted in the 1970’s.”

                By the 2000 election, the soft money system had grown to a half-billion-dollar problem.  And, in the Senate, another new “breakthrough” – the use of congressional “joint fundraising” committees – was devised to further expand the dangerous role of soft money in federal elections.

Thus, what began as a trickle of soft money in federal elections in the 1970s has turned into a flood.  In 1988, the two parties raised a total of some $50 million in soft money.  In 1992, the figure increased to $86 million.  By 1996, soft money contributions to the parties had tripled to $262 million.  In the 2000 cycle, the amount of soft money raised by the parties almost doubled again, to $496 million – just shy of a half-billion dollars.

                Meanwhile, a new law has been enacted to ban soft money.

                And now the same Commission that created and perpetuated the soft money system in the first place will be responsible for issuing regulations to ensure that the new soft money ban enacted into law is effectively implemented. 

See Exhibit 4 (pp. 81-95) for a detailed analysis of the FEC’s role in creating and perpetuating the soft money problem.

While soft money is the most serious and damaging campaign finance problem created by the FEC in administering the federal campaign finance laws, it is by no means the only one.  The FEC has undermined the federal campaign finance laws in a number of areas through its decisions and regulations, and its delays and inaction in dealing with enforcement proceedings. 

Among these are the FEC’s acceptance and adoption into regulations of an unrealistically narrow definition of “coordination,” which opened the door wide to outside groups, allowing them to easily coordinate their expenditures to promote federal candidates, without their activities being subject to federal contribution limits. In the recently enacted campaign finance law, Congress repealed the FEC’s narrow regulation on coordination and directed the Commission to issue new regulations.

Another area where the FEC has undermined federal campaign finance laws is in its rule-making concerning political party conventions.  Since 1976, the major parties have accepted public funds and agreed to forgo private money for every one of their nominating conventions. At the same time, through a series of advisory opinions and rulemakings, the FEC has opened the door to more and more private money.  By allowing the creation of “host committees” to help pay for the conventions, which could receive corporate and union funding, by allowing business contributions in exchange for “promotional consideration” and by allowing the provision of goods and services at discounted rates, the FEC has allowed private funds to virtually swamp the public financing provided for the conventions and thereby undermined a basic goal of the 1974 law.

The FEC’s rulemaking on building funds now allows the parties to use soft money not only to pay for buildings but also for virtually any piece of furniture or equipment that goes into a building.  And its lengthy, dilatory, and often inconclusive enforcement proceedings have led to such absurdities as the dismissal of a case where all commissioners agreed that the law had been violated, and a two-year hiatus to resolve a case that began with an admission of guilt. 

See Exhibit 5 (pp. 97-116) for more information about other problems created by the FEC.

Part II: Recommendations

The FEC’s enforcement problems require fundamental, not incremental, change in order to be solved. 

An editorial in The Washington Post summarizing the FEC’s problems, concluded: “[T]he entire authority to enforce the civil side of the campaign finance law is entrusted to an organization that, under the best of circumstances, is ill-positioned to act decisively – often to the frustration of its own staff.  The FEC, quite simply, does not run like a real law enforcement agency.”

After more than a year of studying the enforcement issue, the FEC Project Task Force has concluded that the FEC must be replaced by a new agency that can “act decisively” and serve as “a real law enforcement agency.”

The Task Force has identified five foundational principles (see pp.  33-46) for establishing such an agency:

1.   A new agency headed by a single administrator should be established with responsibility for the civil enforcement of the federal campaign finance laws.

The Task Force has concluded that the establishment of a new enforcement system headed by a single administrator with a long term of office and limited grounds for removal is necessary in order to obtain effective, fair and publicly credible enforcement of the nation’s campaign finance laws.

The single-headed agency approach would unify the administration of the agency under one clearly accountable head and obviate many of the partisan and political problems that have plagued the six-member FEC and helped create its culture of stalemate and inaction on major matters. 

The Task Force believes that the appointment of a highly visible, publicly credible administrator would also help to ensure ongoing public attention and pressure on the President and Congress to fund the enforcement agency adequately.

Vesting civil enforcement of the campaign finance laws in the hands of a single administrator raises the question of whether that would leave enforcement potentially subject to partisan actions by that individual.  (This question, of course, also exists for the Attorney General who has overall responsibility for the criminal enforcement of federal campaign finance laws, and for the director of the FBI who has investigative authority over campaign finance violations.)

The Project FEC Task Force believes that this concern is mitigated by two principal factors:

·         First, the President’s nominee for the post would have to be confirmed by the Senate.  This, as a practical matter, would require 60 votes and thus, bipartisan support.  Either party could almost certainly block any administrator that it felt would not be impartial and fair.

·         Second, under the new administrative enforcement process being proposed (see Point 3 below), enforcement cases would be considered and adjudicated by impartial administrative law judges which would help to ensure that the agency’s actions were in conformance with the law and were not taken as the result of partisan motives. 

The Task Force also notes that the current multi-member FEC is hopelessly entangled in partisanship and politics, which has rendered the agency ineffectual and not credible.

For similar reasons, the argument that a single administrator would replicate the problems of the now-repealed Independent Counsel Act are also misplaced.  The independent counsel was appointed by a court, not by the political branches, and was thus not subject to the checks and balances of the political process, as would be the FEC administrator.

Further, the independent counsel exercised the powers of a criminal prosecutor, while the FEC administrator would be enforcing only civil remedies, subject to the checks of independent administrative law judges.  The opportunities for partisan abuse, even if the administrator were so inclined, would be severely restricted.

In recommending a new agency, the Task Force believes that this agency could utilize much of the professional staff from the current Federal Election Commission, and that some of the agency’s functions could continue to be performed with little change, such as the agency’s administration of campaign finance disclosure requirements, a function that the agency has generally discharged well.

2.   The new agency should be independent of the executive branch.

It almost goes without saying that any agency set up to oversee and enforce campaign finance laws, including laws that apply to presidential elections, should have a high degree of independence from the White House.  The new agency should therefore be established as an independent agency, with restrictions on the president’s ability to remove the head of the agency.  Moreover the agency should have its own authority to make independent budget requests and legislative proposals to Congress.

The new agency should also be authorized to handle its own litigation independently of the Department of Justice.  This should include the restoration of its authority to represent itself before the Supreme Court.  The FEC had such authority for 20 years, until the solicitor general challenged it and the Court determined that Congress had not specifically granted the FEC this authority. 

3.   The new agency should have the authority to act in a timely and effective manner, and to impose appropriate penalties on violators, including civil money penalties and cease-and-desist orders, subject to judicial review.  A system of adjudication before administrative law judges should be incorporated into the new enforcement agency in order to achieve these goals.

The administrative enforcement procedures currently in existence at the FEC should be streamlined to enable the new agency to operate in a timely and effective manner.  The new agency should be empowered directly to impose appropriate penalties for violations of the law, a power that, with a minor exception, does not exist in the FEC’s current enforcement system.  These penalties should include both civil money penalties, as well as cease-and-desist orders. 

Before such penalties could be imposed, however, alleged violators (respondents) would be offered an opportunity for a hearing under the Administrative Procedure Act before an administrative law judge (ALJ).

Under this administrative imposition approach – used extensively by other enforcement agencies in the federal government – an appropriate penalty could be assessed by agency enforcement staff, but would be subject to offering the respondent a right to a hearing before, and an initial decision by, an ALJ. 

One goal of the new system should be to provide “real time” penalties for violations of the campaign finance laws, where possible, in order to remove the perception that there is “no cost” to violating the law.  To help meet this goal, the administrator should be required to establish procedures and schedules for agency adjudication that would ensure timely enforcement of the law.  Moreover, in those instances where the administrator believes that interim injunctive relief is warranted to stop a threatened or ongoing violation of the law, the administrator should be authorized to seek such relief in federal district court.

Congress should also restore to the new agency the power to conduct random audits that the FEC had when it was created in 1974 and that Congress stripped from the agency later in the 1970s.  Random audits are an important means for ensuring voluntary compliance with the law and are used by other agencies, such as the IRS, to accomplish this purpose.

4.   A means should be established to help ensure that the new agency receives adequate resources to carry out its enforcement responsibilities.

The FEC, unlike other agencies in government, is responsible for overseeing and regulating the activities of the very individuals who are responsible for funding the agency and overseeing its activities. A process, therefore, needs to be established to help ensure that Congress provides adequate funds for the enforcement agency and does not continue to use its appropriation authority to undermine the agency’s ability to carry out its statutory responsibilities.

The General Accounting Office (GAO) should be asked to conduct a study and make recommendations on what levels of funding would be necessary for the new enforcement agency to properly do its job of overseeing and enforcing the federal campaign finance laws. The GAO also could be assigned responsibility for making ongoing public recommendations about the agency’s budgetary needs. Funding provided for other enforcement agencies of the government should be reviewed as part of an effort to establish an adequate funding level for the new agency.

The agency should be funded on a multi-year basis to provide stability in funding, to conform resources to the election cycles of presidential and congressional campaigns and to help insulate the agency’s funding from congressional efforts to restrict the agency’s enforcement efforts. Some kind of measurable standard also could be statutorily established to help ensure the agency receives adequate resources to carry out its responsibilities, such as using the growth of campaign spending over time as one trigger for increasing agency funding, and taking into account the increased workload for the agency in presidential election years over non-presidential ones.

5.   The criminal enforcement process should be strengthened and a new limited private right of action should be established where the agency chooses not to act.

The campaign finance laws have provided only for misdemeanor penalties in the case of criminal violations of the law, even where major knowing and willful criminal violations of the law occurred. This has discouraged investigations and criminal prosecutions by the Justice Department, which has not deemed it a priority to devote resources to activities that involve misdemeanor offenses.

As in the case of statutes covering other areas of law, felony penalties are necessary for major knowing and willful violations of the federal campaign finance laws. This would help to ensure that serious criminal campaign finance activities are treated in a serious and appropriate manner and would increase the potential for the Justice Department to move forward in investigating and prosecuting such activities when they take place.

(The campaign finance reform bill passed by Congress on March 20, 2002 addressed these issues, establishing felony penalties for major federal campaign finance violations and a five-year statute of limitations for campaign finance violations following the 2002 elections.)

In addition, in order to help ensure that a criminal investigation is initiated whenever it becomes clear that such a matter should be undertaken, the administrator of the new agency should be given statutory authority to refer potential criminal matters to the Justice Department at whatever stage in the agency’s enforcement proceedings the administrator concludes such a referral is appropriate.

In order to provide a stronger check against civil violations being ignored, a limited private right of action also should be established, like the one used by the Equal Employment Opportunities Commission, whereby the agency could authorize a private complainant to pursue a matter directly in court on the merits if the agency decides not to act on an enforcement matter brought to it by a private complainant.

Conclusion

The FEC is a failed agency. This has been a central factor in the creation of dangerous and corrosive campaign finance problems in the country and in our reaching the point where the political community believes that “anything goes” when it comes to campaign finance practices.

If the newly enacted campaign finance law is to accomplish its goals and if the credibility and effectiveness of existing campaign finance laws are to be restored, it is essential to establish a new system for enforcing the nation’s campaign finance laws.