March 1, 2017

Private: Obstinate Inaction at the FEC

FEC, Federal Election Commission, Katie O'Connor

by Katie O’Connor

In an era of record political polarization, there are still a handful of issues on which Americans seem to agree. One such issue is the need to implement serious campaign finance reform and drastically reduce the amount of money in politics. According to a 2015 New York Times/CBS News poll, 84 percent of respondents thought that money has too much influence in American political campaigns. 39 percent of respondents said the system for funding political campaigns needs fundamental changes, and another 46 percent said the system needs to be completely rebuilt. Over three-quarters of respondents were in favor of limiting the amount of money individuals can contribute to political campaigns.

Despite a near consensus on the need for change, little has been done to slow the flood of money into politics in recent years. In fact, it has only hastened, with some help from the Supreme Court. The 2016 presidential election is estimated to have cost $6.9 billion, up from $4.3 billion in 2000. Part of the blame for the impasse lies with Congress, which has been growing increasingly gridlocked for decades. But Congressional deadlock is not a total bar to campaign finance reform.

The Federal Election Commission (FEC) is the agency whose mission is to enforce and administer campaign finance laws. Specifically, the FEC enforces laws which seek to “limit the disproportionate influence of wealthy individuals and special interest groups on the outcome of federal elections; regulate spending in campaigns for federal office; and deter abuses by mandating public disclosure of campaign finances.” Despite its bipartisan and overwhelmingly popular mission and its distance from a dysfunctional Congress, the FEC is not immune to gridlock. In fact, it has come to be referred to, in some circles, as the Failure to Enforce Commission.

Recently, Ann Ravel, one of the FEC’s six commissioners, announced her resignation. She simultaneously released a report from her office entitled Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp. Her report pinpoints the cause of gridlock in the FEC and, more importantly, sheds light on the consequences of such gridlock.

As the report outlines, by law, no more than three of the FEC’s six members can be from the same political party. By tradition, each of the two major parties selects three of the commissioners. In order to begin an investigation or make any other substantive decisions or actions, four commissioners must vote in favor. In recent years, the three Republican commissioners have usually voted in lockstep against any serious investigations, ultimately preventing the FEC from doing its job of investigating and enforcing campaign finance laws.

This intransigence is, at least to some Republican commissioners, entirely by design. For instance, current FEC commissioner Lee E. Goodman has said, “Congress set this place up to gridlock. This agency is functioning as Congress intended. The democracy isn’t collapsing around us.” Former FEC commissioner and now-White House Counsel Don McGahn acknowledged that he was “guilty as charged” for “not enforcing the law as Congress passed it.”

And this standstill at the FEC has serious consequences. According to Commissioner Ravel’s report, in 2006, the FEC commissioners split their vote, and therefore deadlocked, in just 2.9 percent of the substantive votes taken. In 2016, the commissioners deadlocked on 30 percent of such votes. In 2006, not a single matter under review was closed due to a deadlock. In 2016, 12.5 percent of the matters under review were closed due to deadlock. And when the commission deadlocked, laws went unenforced. In 2006, the FEC imposed civil monetary penalties totaling more than $5.5 million. In 2016, the FEC imposed only $595,425 in penalties.

As long as the FEC is at a standstill, existing campaign finance laws will go under- and unenforced. This is a real disservice to the vast majority of Americans who believe that money plays too large an influence in our elections. And it is not an unsolvable problem. Commissioner Ravel has offered some of her own suggestions. Fred Wertheimer and Don Simon wrote an ACS Issue Brief in 2013, The FEC: The Failure to Enforce Commission, which outlines another solution. Ciara Torres-Spelliscy also offered suggestions in her Dark Money, Black Hole Money, and How to Solve It. The onus is now on the president and the Congress to heed the will of the people and to start getting money out of our politics.