It has become fashionable in some circles to blame half of the six-member, bipartisan Federal Election Commission for supposed anti-enforcement deadlock, a critique that focuses on a small number of cases among the more than 350 matters the FEC has resolved (resulting in close to $2 million in penalties). And rarely mentioned are the numerous recent court cases striking down or severely limiting the reach of election law, including several parts of the McCain-Feingold law.
The recent Beltway chatter is much more about a long-standing disagreement over how the FEC should navigate recent court cases that limit the reach of the law, rather than any particular split vote. The pro-regulation “reform” lobby downplays its losses in court and continues to view campaign finance regulation as a political exercise that demands dogmatic adherence to its view of what it thinks the law ought to be.
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Many in election law have long realized that what reformers characterize as enforcement is often based on their political interpretation of the law and that only with the “right” FEC commissioners can the law become whatever they want it to be.
But reliance on this elusive spirit of the law can, and does, lead to disparate, unfair results. Independent judgment is required to balance the need to prevent public corruption with how the law applies to ordinary citizens, so as not to discourage political participation.
A recent dispute illustrates this challenge. Some at the FEC supported a significant monetary penalty on a novice Democratic candidate, two years after he lost to a longtime incumbent congressman. The candidate, who had a family member as treasurer and had raised less than $200,000, had trouble disclosing the occupations and employers of certain contributors (information that contributors are not required to provide).
My opposition to the proposed hefty penalty was labeled untenable. The “reformers” — who also opposed my nomination last year before the Senate confirmed me by unanimous consent — branded me an obstructionist and even demanded that I be replaced.
The number of matters in which the process became the penalty, causing people to simply forgo political participation because of the burdens of the law, is striking. In one recent FEC matter, a local party committee offered to stay out of federal elections in order to reduce a civil penalty. In another, the FEC sued a defeated candidate and sought more than $300,000 in penalties. A judge awarded a mere $7,000. Because of cases like these, I proposed numerous reforms that promote agency transparency and increase due process and compliance (as opposed to “gotcha” enforcement that has permeated the commission in past years). Several have recently been implemented, much to the chagrin of the “reformers” who boycotted a public hearing on this very subject.