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National Issues

The FEC On its Sick(Death?) Bed PDF  | Print |  Email
By Bob Bauer   
December 04, 2007

This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.


December has come, and the Federal Election Commission, like a tree stripped of its leaves in the hard winter chill, is about to shed Commissioners as recess appointments expire and new Commissioners are not confirmed.  What will be left standing will be the simulacrum of an agency: it will maintain its physical address and its staff,  two Commissioners will remain gamely at their posts, but it will not have the power, which only four Commissioners may collectively exercise, to produce a rule or Advisory Opinion, or to enforce the law. 


Congress is at an impasse over nominations.  Politics is the most visible source of the agency's troubles on the Hill.  More deeply, however,  indifference in some quarters and hostility in others have taken their toll.  My colleague Brian Svoboda has said, wisely, that it seems that "nobody seems to really need it enough" to care that it is about to fade away, effectively shut down.  Presidential candidates who depend on matching funds may have reason for concern; but perhaps this problem, largely a ministerial one, might be fixed more or less in isolation,  without a more structured, full-scale commitment to the agency's resuscitation.


The reform community is quiet. This is partly if not entirely because while reformers pine for an enforcement agency, the FEC is not what they have in mind. Before their Congress is their proposal for an agency more potent, as reformers define potency, than the one we have now.. The reform program is full of longing for an end to political deadlock, for heavier fines, for prompt action to stop violations as they are occurring--for an FEC, in short, with powers to rival those of other agencies with more routine, bread-and-butter regulatory missions. Reformers, then, will not mourn the FEC's incapacitation: they may find it to their liking, since it may generate the pressures needed to force consideration of the alternatives.


Candidates and parties and others who go about their daily, regulated work have set up their compliance systems and know pretty much what they need to do.  Without a functioning FEC, they would be denied the chance to seek an Advisory Opinion, but it is late in the cycle for them to depend on Opinions to guide them on any major questions.  If there are enforcement caes pending against them, they can expect delay in the resolution.  Of course they are accustomed to delayed resolution, and more of the same is painlessly inconvenient and in most cases it is desirable.


Without an FEC that can act, moreover, the agency's procedures present a less attractive opportunity for the playing of political games.  If someone wishes to file a complaint against another, it is even more obviously a ploy when it is known that there is, literally, no one home at the FEC to receive the package.  Or to do anything with it if it is opened. So when a candidate or party cries foul and announces that it is appealing for justice to the FEC, it won't get much attention: the complainant is just howling into the wind.


This does not mean that lawlessness will break out all over.  Sophisticated actors know that the law is still the law, and that when the FEC is finally restocked with Commissioners, they are free to pursue the wrongdoing committed during the period of suspended enforcement.  And to the extent that it appears that the mice surfaced while the cats were on furlough, there is the added risk that knowing and willful violations will be suspected and investigated.  Referrals in the worst case will be made to Department Of Justice.


But the FEC is not about the worst cases.  Its work is everyday, average, run-of the mill compliance and enforcement, and it is in the absence of any perceived urgency to the conduct of this daily mission, as too many see it for all these reasons, that the FEC is being allowed to slip away.

How can it escape notice that, for all the talk about the agency itself being hobbled by politics, it is politics, on the outside, that is putting the agency in peril of coming to a full stop?   The FEC amid all the criticism has been going about its duties—for better or for worse, it has been defending the statute in court, turning out rules, issuing Opinions, processing enforcement actions (for or worse) against 527s.  As this activity goes on, thinly covered in the press and, in particulars, poorly explained and understood, the only noise heard is that of critics shouting that the law is being ignored and inadequately enforced, or that the agency is acting unconstitutionally and clumsily tormenting the citizens in the conduct of their daily political lives.


This has been the true politics over the FEC, weightier in impact that any partisan conflicts within the agency.  In its own way, in the face of impossible statutory commands and constitutional limits, the agency has tried to muddle through, against the odds.  The politics that brought it into being, and that has always haunted its image and the evaluation of its performance, may be about to close it completely for the Holidays, and for some time beyond.

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