Nearly three years ago, during my tenure as vice chairwoman of the Federal Election Commission, I wrote in this newspaper that my own agency was failing to enforce campaign finance laws. My efforts to cooperate with the other commissioners to fulfill the agency’s mission had been thwarted, revealing an unfortunate truth: The F.E.C. was betraying the American public and jeopardizing our democracy.
It pains me to report that the agency remains dysfunctional, more so than ever, as I prepare to depart at the end of this month as my term nears its end. This is deeply worrisome, because the F.E.C.’s mission is to ensure fairness in elections. One of its core responsibilities is to make sure that all money in political campaigns is disclosed. As Justice Louis Brandeis said, sunlight is “the best of disinfectants.” This quotation graces the street-facing window of the F.E.C.
Unfortunately, a controlling bloc of three Republican commissioners who are ideologically opposed to the F.E.C.’s purpose regularly ignores violations or drastically reduces penalties. The resulting paralysis has allowed over $800 million in “dark money” to infect our elections since Citizens United, the 2010 Supreme Court decision that allowed corporations and unions to spend unlimited sums to elect or defeat candidates.
These commissioners have been enabled by the commission’s very structure. By law, no more than three of its six members can be from the same party. Four must agree to begin an investigation.
This breakdown has been purposeful. Last year, for instance, those three commissioners stopped the agency from even investigating allegations of pervasive workplace political coercion. These same commissioners also blocked enforcement actions against donors who admitted setting up sham limited liability corporations for the sole purpose of pumping anonymous campaign money into elections.
And even when the head of Carolina Rising, a supposed “social welfare” nonprofit organization, appeared on television boasting about the millions his organization spent backing a winning Senate candidate, which constituted 97 percent of the group’s total spending that year, the three blocked any investigation into whether this violated the clear law that political committees must register and disclose their political spending.
So what we are left with is an agency mandated to ensure transparency and disclosure that is actually working to keep the public in the dark.
Robert Kelner, a prominent campaign finance lawyer, put it succinctly last year when he told The Washington Post that “we are in an environment in which there has been virtually no enforcement of the campaign finance laws.”
Mitch McConnell, the Senate majority leader, who has bragged about his opposition to campaign finance laws, keeps a close eye on the commission — particularly the members he expects to do his bidding. One of them, Lee Goodman, said in 2015: “Congress set this place up to gridlock. This agency is functioning as Congress intended.”
But in fact, legislative history demonstrates that gridlock was not Congress’s intention. After Watergate, when Americans were outraged by the campaign finance violations of the Nixon administration, Congress established the F.E.C. to enforce the law fairly. The balance of party membership on the commission was seen as its virtue, to prevent partisan enforcement. Commissioners were expected to come to the table in good faith.
As we have seen in recent years, that was wishful thinking.
A 2015 Bloomberg poll found that at least 87 percent of Americans favored changes to campaign finance laws so that wealth does not dictate political influence.
When citizens feel that their voice doesn’t matter, that their vote cannot make a difference, and that they are powerless, our democracy is in danger. We should encourage efforts at the state and local level to enact campaign finance and other reforms that enable greater participation in the political life of the community.
There are still opportunities to solve the problem of gridlock at the F.E.C. The terms of all five of my fellow commissioners have expired; they are now serving in what’s known as “holdover status.” President Trump is thus in the position to appoint a commission with members who believe in the agency’s mission and purpose and who will enforce the law.
The judiciary also has a role to play. If the commission deadlocks on an enforcement action, the aggrieved party is entitled to seek a judicial review. Unfortunately, courts have routinely deferred to the three commissioners who decline to move forward — deeming them the “controlling bloc.” This deference is undue, and further undermines Congress’s intent for fair administration of the law. Courts should account for the views of the commissioners who sought to address wrongdoing — not just the views of those who consistently obstruct.
Only then will our country be protected from the scandalous federal inaction that we now see.
New York Times