Democracy 21 Calls for Prompt Action by President Obama to Appoint New FEC Commissioners, and by Speaker Boehner and Democratic Leader Pelosi to Appoint New OCE Board Members

Statement of Democracy 21 President Fred Wertheimer At Press Conference Held By Reform Groups December 12, 2012

The Federal Election Commission and the Office of Congressional Ethics have critical roles to play in the enforcement of the nation’s campaign finance laws and the House ethics rules, respectively.

The FEC is widely viewed as a failed agency.

The OCE is viewed as a success.

The OCE has done an excellent job, in large part because of the appointments made to the OCE Board by House Speaker John Boehner and House Democratic Leader Nancy Pelosi.

Both agencies face important questions about who will be appointed to serve on the bodies in the future.

The Federal Election Commission

Candidates and political operatives were free to conduct campaign finance activities in the 2012 election with little concern that the campaign finance laws would be enforced.

This is because the three Republican Commissioners on the six-member FEC have long made clear they are ideologically opposed to the campaign finance laws and have been unwilling to properly interpret and enforce the laws. Because the FEC cannot take any action without the votes of four Commissioners, these three Commissioners have brought the agency to a halt.

A Washington Post editorial more than three years ago (June 15, 2009), captured the role being played by the Republican Commissioners at the FEC:

The three Republican appointees are turning the commission into The Little Agency That Wouldn’t: wouldn’t launch investigations, wouldn’t bring cases, wouldn’t even accept settlements that the staff had already negotiated. This is not a matter of partisan politics. These commissioners simply appear not to believe in the law they have been entrusted with enforcing.

A New York Times editorial on April 17, 2009 similarly said:

[The agency] has become a model of repeated dysfunction as its three Republican members vote together to block major enforcement efforts affecting violators – from either party – producing 3-3 standoffs.

If anything, the problems at the FEC have only gotten worse since 2009.

A New York Times editorial last year (April 18, 2011) described the Federal Election Commission as “borderline useless.”  A St. Louis Post Dispatch editorial last year (March 8, 2011) went one step further, calling the FEC “completely useless.”

The dysfunctional performance of the FEC in 2012 affirmed the accuracy of these editorials.

President Obama is responsible for the problem at the FEC and he is responsible for fixing it.

Five of the six sitting Commissioners are serving in hold-over status after their terms have expired. President Obama could have and should have acted long ago to nominate new Commissioners. He has, however, refused to address the scandalous situation at the FEC.

This should not be a hard one for President Obama. This is not solving the fiscal cliff.

The President tomorrow could nominate five new Commissioners and he could nominate a sixth new Commissioner next April.

It is true that Senator McConnell could filibuster the nominees, but the battle to fix the FEC would move to the Senate where individual Senators would have to take a public position on where they stand on enforcing the nation’s campaign finance laws.

Furthermore, if President Obama’s FEC appointments are blocked by filibuster, the President has the power to make recess appointments which he has successfully done on occasions in the past.

The bottom line is that the problem of a failed and dysfunctional FEC cannot be solved until President Obama starts the process by nominating new Commissioners.

Until that happens, President Obama must assume responsibility for the failure to enforce the nation’s campaign finance laws.

In making new nominations, it is essential that the President abandon the longstanding business as usual approach of letting congressional party leaders select the President’s nominees. It is this approach that has played a key role in the failed FEC we have today.

Democracy 21 has joined in the past with other reform groups and does so again today to propose that President Obama establish a bipartisan advisory group of distinguished individuals to recommend qualified nominees for each available seat on the Commission.

The President could then choose nominees based on these recommendations and in compliance with the statutory requirement that no more than three members of a political party can serve on the Commission at the same time.

In any event, it is long past time for President Obama to act.

The country must not go through another election with the illusion that there are campaign finance laws, but with the reality that there is no enforcement of these laws.

Ultimately, the FEC needs to be restructured or replaced with a new campaign finance enforcement agency. But until then, a number of the FEC’s current problems can be addressed by naming new Commissioners to properly interpret and enforce the laws.

During his 2008 presidential campaign, Obama appeared more than ready to take on the FEC problems. As a presidential candidate, then Senator Obama stated:

I believe that the FEC needs to be strengthened and that individuals named to the Commission should have a demonstrated record of fair administration of the law and an ability to overcome partisan biases. My initial goal as president will be to determine whether we can make the FEC more effective through appointments. What the FEC needs most is strong, impartial leadership that will promote integrity in our election system.

Presidential candidate Obama further stated:

As president, I will appoint nominees to the Commission who are committed to enforcing our nation’s election laws.

But with the exception of one unsuccessful attempt in 2009, President Obama has not only failed to nominate Commissioners committed to enforcing the law, he has failed to nominate anyone to serve on the FEC. As a result, the FEC has been ineffective throughout his first term in office.

As long as President Obama fails to send FEC nominations to the Senate, the failure to enforce the nation’s campaign finance laws is his responsibility. We join with other reform groups today to strongly urge President Obama to move quickly to nominate five new Commissioners to serve on the FEC.

The Office of Congressional Ethics

The Office of Congressional Ethics (OCE) was established in 2008 under the leadership of then-Speaker Nancy Pelosi to address serious problems with the congressional ethics enforcement process. The key role assigned to the OCE was to ensure that potential ethics violations by House members and staff were reviewed and considered by the House Ethics Committee and did not disappear without any Committee examination.

The OCE has effectively carried out the responsibilities it was assigned.

The key to OCE’s success has been the excellent appointments made to the OCE Board by Speaker John Boehner and now Democratic Leader Pelosi. The Board has functioned in a nonpartisan manner and has consistently taken unanimous positions on the decisions it made.

We are now at a point, however, where four of the six Board members have reached their term limits and therefore at least four new Board members need to be appointed to the OCE, assuming the two remaining eligible Board members decide to continue to serve on the agency. Without the appointment of new Board members, the OCE will not be able to function.

Democracy 21 joins with other groups today to strongly urge Speaker Boehner to ensure that the OCE is incorporated in the rules package presented to the House at the opening of the new Congress and that it is recreated without any weakening changes and with the full resources it has received in the past.

We also strongly urge Speaker Boehner and Democratic Leader Pelosi to move quickly to appoint new OCE Board members with the same qualifications and strong commitment to carrying out OCE’s responsibilities that the current Board members have demonstrated.

It is essential for new appointments to the OCE to be made expeditiously in order for the Office to begin functioning immediately in the new Congress without any interruption in its work.