Says President Must Act; Proposes Ideas for Reform

As the U.S. Supreme Court readies to hear another case that could result in further undermining of the campaign finance laws, a new American Constitution Society Issue Brief written by Democracy 21 President Fred Wertheimer and its Counsel Don Simon argue that the federal agency tasked with enforcing campaign finance laws is woefully inept and in need of fundamental changes to enforce any of the laws.

In the Issue Brief, “The FEC: The Failure to Enforce Commission,” Wertheimer and Simon explain how the Federal Election Commission has thwarted campaign finance regulations and now consistently stymies efforts to enforce campaign finance regulations laws intended to provide transparency of how our campaigns are financed and curb corruption of elections and government decisions.

Structural impediments of the six-member FEC and its inability “to take significant enforcement actions on its own” have helped to create a “completely dysfunctional” agency. “We have reached the point,” the authors write, “where we have the illusion of campaign laws because in reality, there is little or no enforcement of these laws.”

One of the FEC’s most detrimental attributes is its political makeup. The authors note that House and Senate leaders have influenced the shape of the FEC by sending names to the president who “routinely forwards them to the Senate for confirmation,” thereby undercutting the Supreme Court’s decision in Buckley v. Valeo, which found the appointment process of the Commission that allowed congressional leaders to appoint members is unconstitutional.

Today, the FEC’s inability to enforce campaign finance laws can be traced to its “three Republican commissioners” who are “ideologically opposed to the campaign finance laws.”

The authors continue, “The Republican commissioners have consistently blocked the agency’s professional staff from pursuing enforcement matters, and have worked to prevent laws on the books from being properly interpreted. This concerted campaign has effectively shut down any significant enforcement of the nation’s campaign finance laws, and has made the FEC nonfunctional.” (The authors provide numerous examples of the Republican commissioners’ efforts to scuttle enforcement efforts regarding possible campaign finance violations by both Democratic and Republican groups.)

Wertheimer and Simon argue that the FEC must be reformed, but not with incremental steps.

First, the president needs to act. The Issue Brief authors note that on the campaign trail in 2008, then-candidate Barack Obama called for a much stronger FEC, one that would bring “integrity” to the nation’s elections.

But in office, President Obama has made only one failed attempt (in 2010) to nominate new commissioners to the FEC, despite the fact that the President has had the authority for the last two years to nominate five new members to the six-member commission.

Obama, the authors maintain, needs to change course. He needs to make nominations to the Commission, and “abandon the business-as-usual approach of letting congressional party leaders select the nominees.”

Democracy 21 and other “reform groups have proposed that President Obama establish a bipartisan advisory group of distinguished individuals to recommend qualified nominees for each seat available on the commission.”

Wertheimer and Simon, citing a bipartisan task force group assembled by Democracy 21, offered other ideas for reform, including the creation of a “new agency headed by a single administrator” tasked with enforcing the “federal campaign finance laws,” new enforcement powers “to impose appropriate penalties on violators, including civil money penalties and cease-and-desist orders,” and a “decision-making structure” that includes “a system of administrative law judges to hear enforcement cases and make initial decisions about potential violations of the law.”

Without a new agency or completely revamped FEC, the nation’s remaining campaign finance laws will continue to go unenforced. The authors, in conclusion, continue that the country needs a federal entity with “the authority, power and independence to effectively enforce the laws.”

The Brief is a part of a larger ACS project: “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” a series of ACS Issue Briefs offering ideas and proposals that ACS hopes the administration will consider in its second term to advance a vision consistent with the ACS mission and the progressive themes President Obama raised in his second Inaugural Address.

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