With Commissioner Ann Ravel sworn in on October 25, and Commissioner Lee Goodman on October 23, the Federal Election Commission has a full complement of Commissioners for the first time since February. They face some matters that should be of urgent concern to all, whatever one’s views on campaign finance regulation.
1. Staff. The Commission is poised to enter its fourth month without even an acting general counsel. And other recent events can only have hurt the recruitment, retention and morale of its employees: the government shutdown; demands from House Republicans for information about contacts between its enforcement attorneys and the Internal Revenue Service, which prompted an inspector general review; and sharp contention between individual Commissioners and staff, including an extraordinary public exchange over agency enforcement practices.
Even the FEC’s skeptics ought to worry about the current state of affairs. The harder it becomes for the FEC to recruit and retain qualified staff, the harder it will be for the agency to maintain the high level of professionalism needed for a mission that is difficult even under the best conditions: enforcing a complex array of rules, in a nonpartisan way, while recognizing and accounting for the First Amendment implications of its actions.
2. Rulemakings. The Supreme Court’s decision in Citizens United v. FEC and the en banc D.C. Circuit opinion in SpeechNow.org v. FEC have completely changed how money is raised and spent in federal elections. Yet, almost four years later, hardly a single FEC rule has been changed to account for either decision. The result is a classic case of new wine in old wine skins. For example, the rules still set forth the old contribution limits unconditionally, without exception. They prescribe a complex series of conditions by which so-called “qualified nonprofit corporations” may make independent expenditures, without acknowledging that the biggest domestic corporation or smallest mom-and-pop can now do the same. They present a reporting calendar that makes no sense in a compressed presidential primary process dominated by super PAC spending. And they place limits on union and corporate fundraising and voter drive activities that draw no distinction between the coordinated and the independent, as Citizens United would seem to require.
3. Inter-Agency Relationships. A thousand flowers are blooming in the field of federal campaign finance. And each one is diminishing, to some small degree, the primacy of the Commission’s role as the interpreter and enforcer of the federal campaign finance laws. The New Hampshire Attorney General has appealed a lower court ruling that FEC rules preempt the state’s poll disclaimer requirements in federal races; the aggressive enforcement of these state requirements has complicated polling in the state which boasts the first-in-the-nation presidential primary. A growing array of pay-to-play rules are affecting challenger and open-seat candidates for federal office. On the heels of an aggressive and strongly disputed prosecution that arose from John Edwards’ 2008 presidential campaign and resulted in his acquittal, it was reported recently at the Practicing Law Institute conference in Washington that the Justice Department was investigating coordination issues in other cases. And the Office of Congressional Ethics has referred a series of high-profile matters to the House Committee on Ethics over alleged, substantive violations of the federal campaign finance laws. At the very least, the FEC should try to bring some uniformity to this burgeoning, diverse field of campaign finance regulation, to avoid arbitrary results and asymmetrical outcomes in similar situations involving different agencies.