The FEC Is As Good As Dead
The new Republican commissioners are gutting campaign finance law.
Last week, the press was full of retrospectives on the one-year anniversary of the Supreme Court's decision in Citizens United v. FEC, which freed corporate cash for use in federal elections. The Federal Election Commission, the six-member bipartisan body charged by Congress with administering and enforcing federal campaign finance laws, marked the anniversary with a 3-3 partisan deadlock over proposed rules to revamp those laws in light of the Citizens United opinion. Unfortunately, this was business as usual at the FEC: For the past several years the three Republican FEC commissioners have blocked enforcement of much of what remains of federal campaign finance law. As we enter the 2012 election season, the FEC is as good as dead, and the already troubling campaign finance world of secret unlimited donations is bound to get worse.
Campaign finance reformers have long complained about the toothlessness of the FEC, whose rules require the appointment of no more than three commissioners from any one party at one time and the votes of four commissioners to get anything done. And yet in past years, the evidence did not bear this out. Democratic and Republican commissioners often worked together, crafting rules and voting to penalize candidate, parties, and political committees for violating federal law.
All of this changed a few years ago, when Republicans put forward the name of Hans von Spakovsky to serve as an FEC commissioner. Von Spakovsky had a controversial tenure when he worked at the Bush Department of Justice, where he was involved in overruling career attorneys (who are not political appointees) on whether the department should approve Georgia's controversial voter-identification law and the Tom DeLay-led Texas redistricting plan. When President Bush nominated von Spakovsky in late 2005, civil rights and campaign finance reform groups protested, and a new senator by the name of Barack Obama put a hold on the nomination.
For a while, von Spakovsky held a recess appointment, but the fight over him resulted in a standoff in the Senate that whittled the FEC's six members down to two. Without a quorum of four, the commission was unable to do even basic things such as approving public funding for presidential candidates. Senate Minority Leader Mitch McConnell, an ardent foe of campaign finance regulation, would not give up on von Spakvosky's nomination, but in 2008 von Spakovsky got tired of waiting for confirmation and withdrew.
President Bush quickly nominated in his stead a Republican staffer on the Senate rules committee, Matthew Petersen. That broke the logjam. The Senate quickly approved Petersen and three more FEC nominations: Cynthia Bauerly, a Democratic Senate staffer, Caroline Hunter, a reliable Republican vote during her service on the U.S. Election Assistance Commission, and Donald McGahn, a Republican election lawyer.
McGahn is everything McConnell could have hoped von Spakvosky would be—a strong opponent of campaign finance regulation in an agency charged with writing and enforcing those regulations. And he is so much more. Instead of inviting controversy, McGahn is a smart, under-the-radar ringleader of the Republican commissioners. (His name gets only three hits from Google News in all of 2010.) With Petersen and Hunter, who garner even less attention than he does, McGahn is dismantling the country's campaign finance laws.
The Republican commissioners have eviscerated campaign finance law simply by resisting the enforcement of such laws. Consider the all-important topic of campaign finance disclosure. As part of the 2002 McCain-Feingold reforms, Congress required that virtually all contributions that pay for television or radio ads close to an election and feature a federal candidate must be disclosed in reports filed with the FEC. The disclosure requirement became even more important after Citizens United, because the Supreme Court's ruling for the first time allowed corporations to spend money directly in federal elections. If the corporations can spend money while shielding their activities from public view, they can avoid alienating customers.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.