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No Barking in the Night About the FEC PDF  | Print |  Email
By Bob Bauer   
December 20, 2007

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


The Federal Election Commission, a six member body (now under five in number), may pass shortly, and for all practical purposes, out of existence, it now appearing that the Senate cannot agree on the pending nominations.  But another six member body may soon be born,  to enforce not the campaign finance laws but the House ethics code.  A task force established by the Speaker has now produced its recommendations, and this is the surprise of the season: the reform community has much to say about the ethics process and is virtually silent on the troubles of the FEC.


Or perhaps it is not as surprising as all that. The reform community has decided that the FEC, as currently constituted, is not worth the bother.  Not even the prospect  of the federal campaign finance law left unenforced in the middle of an election cycle has moved the reformers to protest.  In this sense, the reformers have made common cause with Mitch McConnell, each wishing to allow the FEC’s demise to speak loudly to their larger points. The reform community wants to make it clear that the FEC is beyond salvation and that the time has come to consider alternatives.  McConnell would go farther and argue that neither this agency nor a more “effective” or “powerful” version is needed or a force for good.  They agree, it seems, on the proposition of most immediate import, which is that they can do without this agency, at this time.


The reformers have now turned their attention to the proposal to establish an independent Office of Congressional Ethics to supplement ethics enforcement.  Their grievance, or the one they have chosen to highlight, is that the Office will not have independent authority to issue subpoenas.  Their fear (or argument) is that without this investigative authority, the Office will not be taken seriously. Witnesses will “stonewall”; investigations will be superficial; wrongdoing will go unaddressed.  Reform organizations would prefer a process that is more like a substitute for, rather than a supplement to, Congress’ own enforcement of its rules: an independent Director rather than Board decision-making, an independent staff, and independent subpoea power.  Congress would be left with a formal role, more or less relegated to passing on the independent Board’s recommendations at the end of the process and under much pressure to do as the Office asked or to explain, defensively, why it would not.


The Task Force report explains credibly why things are not so simple, and why the independent Office as proposed is independent enough without undermining Congress’ constitutional role or complicating the plan for creating the office by simple resolution.. The proposed Office when conducting its own review may request interviews and documents, and if these are denied, then its own recommendations to the House Committee on Standards may take this resistance into account. They who stonewall would do so at their peril. Moreover, as proposed, the Office may specifically recommend the issuance of subpoenas for information it could not by voluntary agreement obtain.  This is reason enough for witnesses or respondents to pause before mounting the defiance or executing the evasions contemplated by reform critics. 


But we are back to the end-of-the-season reality that professional reformers would prefer to fight over Congressional ethics enforcement than stand for the FEC, for independent campaign finance enforcement, when the agency is about to crumble powerlessly to the ground.  It might have made a difference to have heard from those most committed and for the longest period to campaign finance law enforcement.  The stakes might have been explained; measurably greater pressure for a resolution might have been placed on the Congress. The very public that Rick Hasen believes will be “hurt” by the end to FEC enforcement might have better appreciated the threat to its interests.  


The reform community has its reasons, however, and these are ones hard-wired into its lobbying strategy for a new enforcement agency.  A failed FEC, brought down in a partisan squabble and without a friend in the world, might just help illustrate the reform case for a new and stronger model.  So, apparently, goes reform thinking.  Better no campaign finance enforcement for a spell than more of the same kind they have criticized for many years, virtually from the start. 


Such is the calculation that has silenced the reform community as the campaign finance laws enter into the election year without a mechanism for guidance or civil enforcement.   It is very much a Washington story, with most of the main actors acting in their own interests, for their own political purposes, but few saying out loud what they are thinking or stating directly why they act as they do--or are quiet when they might have been expected to speak out. 


But when someone asks, what killed off the FEC, one clue lies in that magnificent Holmes tale, Silver Blaze:

“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in  the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

Sir Arthur Conan Doyle, “Silver Blaze”, in Sherlock Holmes: The Complete Novels and Stories (Vol. I) at 540.

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