The Federal Election Commission (FEC) is the regulatory body established by the Federal Election Campaign Act of 1974 that is responsible for enforcing campaign finance laws. Common Cause supported the establishment of the FEC but has been critical of its effectiveness and willingness to perform the job it was created to do.
Rather than provide swift rulings and forcefully police the campaign finance and election landscape, the FEC is a failing agency that is built for gridlock and often held captive by the elected officials that it is meant to police.
The FEC is different from other law enforcement agencies in the federal government because it has direct oversight and regulatory authority over Members of Congress. As a result, Congress and especially party leadership tightly control the nomination process and have historically seated commissioners who are loyal to the party that appoints them.
Even the structure of the commission reflects the political sensitivity of its work. The commission has three Democratic appointees and three Republican appointees who vote on official agency actions. A 3-3 tie vote results in no action by the commission, effectively giving each party veto power over any potential FEC enforcement action.
Congress also gave the FEC few actual powers relative to other law enforcement agencies. The FEC cannot on its own sanction groups it believes have violated the law. It can only negotiate for a payment of civil penalties by candidates or political groups. If it cannot reach a settlement, then FEC can begin an enforcement action in court by filing a civil lawsuit against the respondent. The commission has the power neither to seek court injunctions to halt illegal activity while it is occurring nor to conduct random audits of campaigns.
If the FEC is going to be an effective law enforcement agency, it cannot be hobbled by Congress and run by political appointees. Congress should model the FEC after more effective law enforcement agencies that are headed by a single administrator who is appointed for a fixed term by the President and confirmed by the Senate. It needs the power to adjudicate and sanction cases independently and to file injunctions to stop blatantly illegal political activities before the relevant election is over, not years after the fact.
In other words, the one federal law enforcement agency that is primarily responsible for overseeing the campaign activities of Members of Congress needs to be better insulated from those it regulates. Congress has the FEC on a tight leash, preventing it from being an effective watchdog.
Perhaps nothing illustrates the FEC’s failings better than the first seven months of 2008, when, in the midst of the most expensive election cycle in history, the country lacked a functioning FEC because the nominees were stopped in the gridlock of the Senate.
Without effective enforcement of existing campaign finance laws, further legislative remedies are moot.