The following article was posted on Bob Bauer's Blog and is reposted here with permission of the author.
The Senate Rules Committee hearing scheduled for this week, on nominations to the Federal Election Commission, has captured press attention—but mainly attention to the Department of Justice, and to the service there of nominee Hans von Spakovsky. Zachary A. Goldfarb, "Hearing on FEC Pick Could Add Fuel to Debate Over Justice Dept.," Washington Post (June 8, 2007) at A17. What the FEC has done, and the parts played by von Spakovsky and the other Commissioners, seem to hold scant interest. No one who has attended FEC public meetings would be surprised. There are plenty of seats usually available, and the ones taken are occupied by staff and witnesses and a tiny contingent of the press. An agency that decides how money can be raised and spent for federal politics gets limited attention, and the attention it can count on is usually seriously misinformed. This is the other cost of the von Spakovsky story: it is distraction from the subject matter before the Committee, which should be the work of this agency.
In the last several years, the agency has had much to do on important issues, most of them arising from the enactment of McCain-Feingold. The law has been transformed. On a host of issues, from the regulation of the internet to the role of 527s, the FEC has acted and the hearing this week, bringing four Commissioners to the Congress, provides the opportunity, rare as it is, for a useful review of their work. Gerry Hebert, wishing this to be an inquiry into the DOJ sins of von Spakovsy, has put together a list of questions of voting rights controversies. A list of questions about FEC issues, suitable for a hearing about the FEC, would be desirable too,
Not all of these questions would have to be the usual ones, about the run-of-the-mill controversies on which there are, in the political and journalistic community, strongly held opinions. It might be more enlightening to have from these Commissioners an account of how they approach their jobs, each of them having had experience with locating an answer, a defensible answer, to difficult questions at the treacherous intersection of law, politics and the First Amendment.
Critics of the agency seem convinced, for whatever reason, that there are clear answers, faithful to the requirements of sound public policy, and the FEC, as McCain likes to say, is too “corrupt” to adopt them. This is an absurd oversimplification, popular with editorial boards, and this Wednesday, the Commissioners might be asked to explain the absurdity.
This would be a refreshing departure from the tired round of questions and assumptions that have become the boring staple of campaign finance dialogue. The Commissioners might be challenged to present a view of how their decisions are made, and why it is that the agency has struggled for so long to have their work understood and treated as credible. Let the Commissioners speak to their experience in managing this strange process, both a regulatory and political process. Why not have them demonstrate their thoughtfulness on a topic that is all too rarely discussed thoughtfully in the public sphere?
These questions would include:
1. Partisanship. What is the effect of partisan divisions on the FEC? We hear that the agency deadlocks on major issues, each party standing firm for its own narrow interests. What is the reality of the interaction among the Commissioners: how partisan is it, and how are these partisan pressures managed if at all?
2. Staff. One of the questions has been the role of the staff, and specifically the Office of General Counsel. In the last years, complaints have been registered that the General Counsel no longer, on controversial Advisory Opinions, makes a recommendation which the Commission would then approve or disapprove. What is the Counsel’s role?
3. Public Participation. Describe the agency’s efforts to communicate with the general public about its work. During the Internet rulemaking, there was broad public interest and involvement through comments. Normally, in other rulemakings, there is not. How would the Commissioners define and respond to the need for broadly distributed information and education about the FEC’s work?
4. Process. The FEC has been criticized over the years for a cumbersome process characterized by lengthy delays in the resolution of cases. How has the FEC addressed this, considering both fairness to those under investigation and the need for a reasonably prompt resolution? What has been the experience with two programs, the ADR and administrative fine programs, that were adopted to improve the efficiency of the enforcement process?
5. Data. The FEC does not conduct or commission research of its own, but relies on those commenting on rulemaking proceedings, on information disclosed by reporting committees, or on studies conducted by reform organizations or academic specialists, for empirical propositions that might be helpful to the formulation or evaluation of rules. Would it benefit the FEC to have the authority and funding to commission research?
6. Fines. Are the number and level of fines a fair measure of how the FEC is enforcing the law? Or is this merely the incentive to the agency to levy as much, as high as possible, to project a sense of muscular enforcement. How else would we judge the effectiveness of the agency’s work— what, beyond fines, would the Commissioners point to in determining how well the agency has performed its statutory responsibilities?
7. Congressional Support. What are one or two steps that Congress could take to most assist the FEC in improving its operations and the quality of its work. For purposes of this answer, distinguish between:
(a) reform of agency process; and
(b) a substantive change in the law, whether effected by more regulation or less.
8. FEC Introspection. What are one or two steps that the FEC could take to improve its operations and the quality of its work.
9. The Presidential Election Cycle. What would the Commissioners anticipate to be the major challenges facing the FEC in the next year, and how are they preparing for it?
10. Surprises. What has surprised the Commissioners most about the FEC—a discovery far from their expectations when first taking the position—and what is its significance for their work?
These are questions that, once answered, could yield useful information about the state of federal campaign finance regulation. It is hoped that there will be time for them at the hearing.
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