Recently, four legislators, unhappy with the Federal Election Commission’s implementation of campaign finance reform, announced their proposal to replace this body of three Republican and three Democratic commissioners with a three-person “Federal Election Administration.” Ironically, the same lawmakers who have castigated the FEC as beholden to partisan interests have now introduced a bill that would reduce the agency to a pawn for the controlling political party.
Members of the new agency, like the current commissioners, would be appointed by the president and confirmed by the Senate. One Republican and one Democratic member would each serve a six-year term, but the powerful chairman (granted a 10-year term) would certainly be of the president’s party. If the FEA were constituted today, that would mean an extraordinary advantage for Republicans, but 10 years from now a Democrat could be in the White House, and the bias could tilt the other way. Politicians of any stripe who rued the excesses of independent counsels should be wary of creating an equivalent office with a 10-year term and a mandate to investigate campaigns.
A majority vote would decide disputed issues at the FEA, and a majority would constitute a quorum. Thus, not only could the two appointees of the same party routinely outvote the minority member, they could actually hold meetings and conduct business without even having the minority present.
Moreover, under the proposal, an administrator could not remain in office for more than a year past the expiration of her or his term. Thus, a mischievous president could simply refuse to appoint a replacement for a member of the opposing party and thereby ensure that the two members of his or her party have free rein. Couldn’t happen? How many judicial vacancies have lingered for years while the president and the Senate argued about appointments?
This partisan tilt is required, according to the proponents, to address the problem of gridlock — matters being stymied by 3-3 party-line voting — at the current commission. This does occasionally happen and when it does, it is a serious and frustrating problem. The impact of gridlock on the FEC’s functioning, however, is vastly overstated.
Fewer than 3 percent of the votes cast by FEC commissioners since 1993 have resulted in a 3-3 deadlock, and not all of them have gone down party lines. Moreover, the enhanced criminal penalties under the Bipartisan Campaign Reform Act, enforceable by the Justice Department, should provide a new check on egregious conduct.
In the vast majority of cases, the bipartisan nature of the body forces commissioners to seek common ground. It also enhances civility. Each commissioner has an equal opportunity to affect policy. And we never push through a vote before all commissioners have had a chance to read the proposal.
The pool of potential nominees to the new agency would be curiously restricted. Most current and recent commissioners would be disqualified. Also barred would be all officeholders, candidates, party officials and their lawyers until the taint of politics had faded by virtue of a four-year absence from activity. Indeed, under this plan, all those most knowledgeable about the strengths and weaknesses of campaign finance law, as well as those with current practical knowledge of how campaigns really function, would be eliminated from consideration.
Whom does that leave? The confirmation process favors stealth candidates with no track records. The proponents seem to favor ivory tower academics and retired judges. But neither professors nor judges are immune from political views. Ironically, of the three most recent commission appointees, only Brad Smith, the commissioner reformers most love to hate, would have been qualified for appointment under the criteria of their new bill.
In a reversal of how most agencies work, political operatives would be barred from serving at the top but not at the staff level. Since the chairman of the new agency would have the power to appoint the general counsel and the staff director, these two key positions that are currently filled by professionals would immediately become politicized. In addition, the bill gives the chairman the power to appoint all the new administrative law judges.
Proponents of the bill harbor the notion that politics can be removed from the appointment process if the position is prestigious enough or the term long enough. One need only look to judicial confirmation battles for refutation.
This is not to suggest that I think the FEC is perfect or that its decisions are always correct. The proposed bill has its strong points; the added enforcement powers of the proposed agency are alluring. If you believe, however, that party-line voting is endemic, the last thing you should want is an election administration where one party would win every time and the views of the other party could be ignored. The FEA bill would enshrine, not eliminate, partisanship in administering campaign finance law.
Ellen L. Weintraub is chairwoman of the Federal Election Commission. The opinions expressed are solely her own.