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It’s Not the Time to Add Members to FEC Hall of Shame

I had planned to write this column on the loopy bill introduced last week by Reps. Jim Sensenbrenner (R-Wis.), David Dreier (R-Calif.) and Candice Miller (R-Mich.) to respond to the Continuity of Government Commission — a bill that mandates the states, when the Speaker has declared that there are at least 100 vacancies in the House, to hold special elections within 21 days. More accurately, since the parties are given 14 days to choose candidates, the bill would require these elections to be held within seven days. [IMGCAP(1)]

Since the House has left for the August recess, I don’t want to use all of this precious space now to discuss the full implications of this bill. Instead, I would just ask Dreier’s staff to refer to him Saturday’s Los Angeles Times article on the gubernatorial recall campaign subtitled “Clock Ticking, Election Officials Scrambling.” It is about how incredibly difficult and onerous the task is for California local election officials to get ready for an election that is 75 days off — not seven days, 75. Here are two interesting portions of that story, quoting first a local election official and second an official from the printing company:

“‘Time is really our enemy,’ [Los Angeles County Deputy Registrar Kristin] Heffron said.

“She usually reserves polling places six months in advance of an election, but many of the regular precinct locations — in schools, churches and community centers — have already been booked for other uses. …

“Once the list of candidates is released, the presses at Sequoia [Voting Systems’] Porterville [Calif.] facility will start running 24 hours a day, churning out millions of absentee and regular ballots for Los Angeles and several other counties.

“‘We’ll print three shifts a day until they’re done,’ [Sequoia spokesman Alfie] Charles said.”

Think about it, Chairman Dreier — this is what your own district’s local officials have to do with 60 days’ notice after the candidates are selected. So unless your bill can also mandate that each day will have 168 hours instead of 24 (and that will take more than a constitutional amendment), a seven-day period for 100 or more Congressional elections, all at a time of national emergency and catastrophe, is beyond silly. And you are not silly. So please go back to the drawing board and reread our report.

But enough about continuity (for now). With the Senate still in the saddle, I want to return to another favorite hobby horse — campaign finance, in this case the Federal Election Commission. This week, we have had the embarrassing spectacle of Democratic Senate Minority Leader Tom Daschle (S.D.) and House Minority Leader Nancy Pelosi (Calif.) spurning FEC Commissioner Scott Thomas and moving to replace him with Robert Lenhard — in one fell swoop, removing the one commissioner most dedicated to enforcing the law with genuine fealty to principle and replacing him with someone who is a clear opponent of the campaign finance law that passed last year and will be considered by the Supreme Court in September.

I am not ready to place Daschle and Pelosi in the FEC Hall of Shame. Both were genuine champions of reform when it was on the griddle in Congress. Daschle repeatedly stepped in to help in the Senate, including right at the end when the bill required Senate accession to House provisions to avoid a deadly conference. Pelosi was a key figure, especially when the bill was threatened by a revolt against raising the hard-money limits.

In this case, I believe they are simply being ill-served by party hacks who have bitterly opposed any reform for years and have worked actively to undermine the law since its enactment. I am skeptical, to say the least, about any assurances that Lenhard will go from signing briefs challenging the law in the courts to becoming an effective enforcer of its provisions on the commission; we have seen too many examples of the opposite (see, for example, the record of Karl Sandstrom, the latest in a line of deeply disappointing Democratic debacles — how’s that for alliteration — on the commission).

The bigger problem, though, is simply the decision to oust Thomas. No one knows the law and the history of campaign finance better than Scott Thomas. No one better understands the fiduciary responsibility of a member of an independent regulatory commission. It is the worst possible signal to punish a man who has done his job exceedingly well. And the timing is especially bad, since Thomas has joined with an impressive new Republican commissioner, Michael Toner, to push much-needed reform of the presidential campaign system.

In the meantime, the law is actually showing serious signs of working as intended. Democrats have responded to the challenge after years of relying on the largesse of a handful of billionaires and neglecting to build reliable bases of small and medium donors. Democrats under the new law have raised more hard money by far than they did during the previous cycle. At the Congressional level, where Republicans spend huge sums on direct-mail costs that mask their net receipts, the Democrats are holding their own.

Democrats should focus on changing a feckless and out-of-control agency to make into a genuine model of regulation, like the Securities and Exchange Commission. The FEC’s performance during the debate on campaign finance reform and since has been shameful. Two commissioners, David Mason and Bradley Smith, got actively — proactively — engaged in the debate on the bill as it was ongoing in Congress, to the point of being directly involved in providing ammunition to opponents while the bill was on the House floor. I have never seen regulatory commissioners do anything like that in 34 years of Congress-watching. Both cast repeated votes on the regulations to implement the bill that openly ignored or flouted the express intent of the bill’s authors and sometimes the language of the law, always in ways that fit their own ideological predispositions. They were joined by Democrat Sandstrom, who behaved as if he were a wholly owned subsidiary of the bill’s opponents. There is something about the culture of the FEC that turns generally nice guys like Mason and Sandstrom away from their deeper responsibilities. They then contribute to the dysfunctionality of that culture.

Then there is Bradley Smith, truly the limiting case. When Bradley Smith was sworn in to the FEC, I am told, he had a ceremony at the Cato Institute and got Judge James Buckley (yes, the Buckley of Buckley v. Valeo) to swear him in. Buckley noted in his comments the tough criticism Smith had faced in the confirmation process for his views and extensive writings on campaign finance law and reform. He dismissed the critics, saying that what one does in one’s private life, engaging in the arena of public debate, is not relevant to what one will do after getting sworn in and entering public life. The role changes, an individual takes on new fiduciary responsibilities and acts in a different way — much, by the way, as Buckley did when he moved from being a strong conservative activist to a Republican Senator to a first-rate judge.

His general point was valid. Sadly, he was mistaken about Commissioner Smith, who has stayed seamlessly loyal to his ideological zealotry in his role as commissioner. Even as campaign reform was actively considered by Congress, he wrote a series of vitriolic attacks on the bills under consideration, including the major provisions that were enacted into law. Even as the courts were charged with considering the constitutionality of these provisions — with the FEC charged with responsibility for defending the law — he was writing attacks on its constitutionality!

Does this intelligent and articulate law professor have no understanding whatsoever of the fiduciary responsibility of an independent regulatory commissioner? Does he have no sense about what it means when someone whose sworn responsibility is to uphold and execute the provisions of a law duly enacted by Congress and signed by the president viciously attacks it before, during and after its enactment? And then confirms his ideological predisposition and indifference to his role by voting repeatedly to gut its provisions?

I have seen lots of activist and ideological commissioners serving on the FEC, SEC, the Federal Communications Commission, the Consumer Products Safety Commission, the Interstate Commerce Commission and other regulatory commissions in the 34 years since I first came to Washington. I have never seen anyone come close to the behavior of this man.

Let’s add to the FEC Hall of Shame the White House officials who openly violated the written agreement they had with Sen. John McCain (R-Ariz.) to replace Sandstrom, long after his term had expired, with the Democrats’ nominee, Ellen Weintraub, who had languished for months, then lied to McCain about it, thus allowing the FEC commissioners above to have an extra couple of days to hold unprecedented late-night sessions to have their three votes to squeeze out more crippling regulations before the White House finally gave in and let Weintraub go. I am still expecting CIA Director George Tenet to take responsibility for that move.

We don’t need more members of the Hall of Shame, or to make the agency a permanent member. What we need now is real reform of the regulatory process, including replacement of the hapless FEC with a meaningful agency that can actually faithfully execute the laws as enacted. McCain, Sen. Russ Feingold (D-Wis.), Rep. Christopher Shays (R-Conn.) and Rep. Marty Meehan (D-Mass.) have recently introduced a bill to do just that. Until it is passed, we at least need commissioners who don’t reek of conflicts of interest and who understand their fiduciary responsibilities.

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