A report by the left-leaning Brennan Center for Justice recently derided the Federal Election Commission for the “partisan stalemate” and “dysfunction” at the “evenly divided” agency. The critique echoes numerous long-standing attacks on the agency.
As congressional Democrats push to restructure the agency and a House Administration Committee oversight hearing looms, members of Congress should consider both sides of the story. The longstanding bipartisan administration and enforcement of our federal election laws hangs in the balance.
A frequent grievance against the FEC is its bipartisan structure. By law, no more than half of the agency’s six members may be of the same political party. At least four votes are required for most agency actions, including opening investigations, imposing civil penalties, referring matters for criminal prosecution, and issuing advisory opinions. As former Democratic Sen. Alan Cranston explained in 1976, the FEC was created this way to prevent it from becoming “a tool for harassment by future imperial presidents who may seek to repeat the abuses of Watergate.”
Despite this historical consensus for the FEC’s bipartisan structure, the Democratic House majority buried a provision in their recent 700-page H.R. 1 legislation to reduce the agency to five members. Under the bill, the fifth commissioner ostensibly would have to be an independent or minor-party member. But “independents” in the mold of Bernie Sanders who caucus with one of the major parties could easily be appointed, thereby allowing a partisan takeover of the FEC.
H.R. 1 also would allow the president to appoint an FEC chair who could make important decisions unilaterally, such as subpoenaing documents and testimony and appointing an agency general counsel. The general counsel, in turn, could unilaterally open investigations without commissioners’ bipartisan approval.
The pretense for this radical restructuring is the frequent deadlocks among FEC commissioners. But there are several major flaws with this rationale.
First, critics argue that “by making the FEC an odd-numbered commission, it would have a structure like almost every other federal agency in Washington,” such as the FCC, the SEC, and the FERC. However, the FEC is the only agency charged with regulating partisan political activities, and therefore is the only agency where political parity is essential.
As FEC Commissioner Steven T. Walther — who caucuses with the Democrats — said, “there is greater wisdom in retaining the structure that exists now.” Otherwise, “there could very well be accusations of partisan motives” at the FEC.
Indeed, many of the complaints filed at the FEC are for partisan advantage. For example, a group run by Democratic operatives called the American Democracy Legal Fund churns out one FEC complaint after another against Republicans. As a Section 527 political organization under the tax code, ADLF’s primary purpose, by law, is to engage in partisan activities.
Second, several of the FEC’s Democrats have repeatedly lashed out at the agency’s Republicans for the deadlocks. The Republicans have been too polite to note the obvious: It takes two sides to deadlock. For example, in one deadlocked matter, Democratic Commissioner Ellen L. Weintraub recently took the position that a Republican organization may not program its websites so that Internet searches on Democratic candidates also produce opposing viewpoints. This was after two federal courts had ruled such a ban to be (obviously) unconstitutional.
For more than half a year, Weintraub also has continually deadlocked approving a bipartisan advisory opinion request to allow non-profit groups to help protect candidates and parties against foreign online hacking. The FEC’s Democrats also previously deadlocked approving a request from left-leaning Revolution Messaging to run mobile device ads, leaving the group’s Democratic attorney exasperated. Despite frequently taking such objectively questionable positions, several of the FEC’s Democrats have acted like the Republicans are solely to blame for these deadlocks.
To fit this narrative, the House Administration Committee’s Democratic majority also has issued questions to the FEC commissioners in which they cherry-picked data to exaggerate the agency’s deadlocks. As the FEC’s Republicans pointed out, the deadlocks the House committee cited focused only on the hardest cases, rather than considering the agency’s entire docket. When all enforcement matters are considered, the commissioners deadlock in only a small minority of cases.
The FEC’s bipartisan and deliberative structure is critical for an agency that regulates sensitive core First Amendment-protected activities. More so than in other areas of the law, an FEC that can casually open investigations into political activity and railroad respondents without sufficient bipartisan protections opens a Pandora’s Box of political hijinks committed under color of law.
As the Democratic-leaning Walther maintains, the FEC “still remains the finest disclosure agency worldwide regarding campaign finance information.” Repeated efforts to trash the FEC should be viewed skeptically as attempts to skew the agency for ulterior motives.
Eric Wang is a political law attorney and senior fellow with the Institute for Free Speech. He previously served as counsel to FEC Commissioner Caroline C. Hunter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.