This piece originally appeared in Washington Examiner on October 17, 2019.
The Federal Election Commission may be the worst way to regulate political contributions and spending: except for all the alternatives, that is.
Certainly, there’s little reason to love the FEC. It’s the only federal agency for which its entire mission involves the regulation of core First Amendment activity, and our federal campaign finance laws, rules, and regulations are opaque and confusing. Witness the recent uncertainty among campaign finance experts as to whether Democratic presidential candidate Andrew Yang’s $120,000 giveaway is legal or not.
But if we’re going to regulate political speech, the commission’s bipartisan structure and due process protections are essential to avoid turning campaign finance laws into mere tools of partisan politics. The law provides for six FEC commissioners, each of whom is supposed to serve a single six-year term. By law, no political party can hold more than three of the seats, and four votes are required for the commission to take any serious action. This bipartisan structure prevents the commission from being weaponized by partisan interests.
But the commission currently lacks enough members to act, and its remaining commissioners are all long past their terms and mired in professional animosity. It’s time for a clean slate.
Unlike many other agencies, where government officials finish their terms and must leave after a certain time, the commissioners at the FEC are permitted to stay until they are replaced, even if their original six-year term has ended. Currently, there are only three commissioners, preventing the FEC from conducting any new business. While the president nominated a Republican lawyer to fill a vacancy in 2017, the Senate has failed to act on that nomination or even hold a hearing.
As a result, literally all three remaining commissioners are serving years past their expired terms. In fact, every current commissioner was appointed by President George W. Bush. It is unsurprising that acrimony reigns at the commission, where the principals are involved in decadelong disputes and have long since lost trust in the other side’s good faith.
Consider: Ellen Weintraub, a Democrat and the FEC’s current chairwoman, has served on the commission since Dec. 9, 2002, before the Iraq War started.
After almost 17 years in the position, nearly three times what is supposed to be the legal limit, Weintraub appears to spend much of her time organizing symposia on issues over which the FEC has no jurisdiction, sending letters to the president complaining about the text of his public addresses, and issuing partisan press releases on Twitter. In one case earlier this year, she literally wrote her dissent from the commission majority in the form of a Mad Lib.
Suffice it to say she should be allowed to go back to private practice.
Many who deal with the commission have been frustrated by the agency’s recent inability to act. As just one example, the commission has held open a rulemaking process on internet ad disclaimers since 2011.
For reference, in 2011 Donald Trump was hosting Celebrity Apprentice, Energy Secretary Rick Perry was running for president on a platform that included abolishing the Department of Energy, and Marvel had yet to make The Avengers.
Over the past seven years, the FEC has posted notices about its intent to act no fewer than four times in the pages of the Federal Register, reviewed hundreds of pages of advice from both campaign finance and technology experts, and even held hearings on the issue of internet ad disclaimers. Yet it has been unable to answer the question, which is a serious shame. If we are going to regulate political speech, the least the government can do is clearly explain what is and what is not legal.
Even before this month’s resignation of Vice Chairman Matthew Petersen, the commission functioned with only four commissioners for over two years. That meant unanimity was required for the FEC to do anything of substance. Since nearly all actions require four votes, the FEC now lacks even that constrained ability to operate.
Thus, the president should consult with the Senate leadership of both parties and nominate six new commissioners, three Democrats and three Republicans — a clean sweep. There is no need for this to be a partisan exercise: Both Majority Leader Mitch McConnell and Minority Leader Chuck Schumer surely know good campaign finance experts with unimpeachable credentials.
The country deserves a functioning campaign finance agency, especially as we head into the 2020 campaign season.
