THE BLOG
07/23/2013 03:53 pm ET Updated Sep 22, 2013

A Parting Shot to Neuter the Federal Election Commission

It's old news that the Federal Election Commission (FEC) -- the agency charged with enforcing the nation's campaign finance laws -- is moribund by ideological stalemate. But on July 25, the Commission is expected to vote on a measure that would neuter even the staff's ability to get much done.

The FEC is broken not because of its staff, a corps of professionals working hard in a futile effort to get the agency back on track. It is broken because of its management: the six commissioners (currently only five) who determine what the agency will and will not do.

In an ideal world, the Commission is composed of three Democrats and three Republicans dedicated to enforcing the law who are appointed by the president and confirmed by the Senate. To ensure bipartisan fairness, official actions require a four-vote majority. In reality, the FEC is unable to do its job because a bloc of commissioners has been carefully selected to prevent four-vote decisions, thus effectively tying up the law.

It is no secret that Senate Minority Leader Mitch McConnell (R-Ky.) has never met a campaign finance law he likes. While McConnell cannot convince Congress or the public to end limits and disclosure of money in politics, he has figured out that the campaign finance laws can be nullified by a hostile FEC. So McConnell selected three Republican commissioners -- Don McGahn, Caroline Hunter and Matthew Petersen -- who are marching in lockstep to prevent enforcement of the law.

The impact of this bloc of commissioners has been nothing less than draconian. Since their appointment in 2008, the number of deadlocked votes on enforcement actions has skyrocketed nearly 10-fold, from fewer than 2 percent through the entire history of the agency to about 19 percent in 2012. Simply put, a deadlocked Commission is preventing the agency from enforcing the law.

This stranglehold on FEC decision-making has no doubt deflated the zeal of its staff, reflected in a sharp drop of enforcement cases presented to the Commission from a yearly average of well over 700 cases before 2008 to only 135 cases in 2012 -- the same year that record amounts of undisclosed "dark money" overwhelmed our elections. While the staff has continued to investigate potential violations, and proposed further actions by the Commission, they routinely face a deadlocked Commission unable to move forward on significant cases -- a public display that must be disheartening to the staff and also a little embarrassing to the Commission.

But even this unhappy status quo can dip further downward. Commissioner Don McGahn has decided to depart the FEC, but not until he takes a parting shot at the ability of the staff to conduct enforcement investigations

One Democratic commissioner left in February, leaving three Republicans and two Democrats on the Commission. McGahn is hoping to take advantage of the partisan imbalance by proposing a "gag" order in new enforcement guidelines, to be approved by a 3-2 majority, that would: (i) prevent FEC staff from viewing public resources in conducting their investigations, such as candidate and government Web pages, news reports, business databases and social media sites; and (ii) prohibit FEC staff from sharing information with the Department of Justice (DOJ), which handles criminal investigations of campaign finance scandals.

If the ability of FEC staff even to conduct an investigation can be hamstrung from the onset, then the Commission need not face many more embarrassing obstructionist votes. Just as importantly for those seeking to block enforcement of the campaign finance laws, the DOJ will also be hobbled in its criminal investigations.

Prior to announcement of McGahn's proposal, FEC General Counsel Anthony Herman unexpectedly resigned from the agency last month. After the announcement, Herman felt compelled to warn the FEC and the public of the pending danger to campaign finance enforcement and submitted public testimony to the Commission.

If the Republican commissioners continue to vote as a bloc on this proposal, they will effectively neuter the enforcement ability of FEC staff and hinder Justice investigations of egregious violations.

Though it is a big ask of the remaining two Democratic commissioners, they could take a page from McGahn's playbook and not show up at the next FEC meeting, thereby denying quorum and any agency decision on the gag order.

President Barack Obama has nominated two new commissioners to fill the open Democratic seat and replace McGahn. Though it is long past time to replace every single one of the commissioners -- all of their terms have expired for quite some time now -- at least two new faces will restore bipartisanship and maybe, just maybe, restore the old sense of commitment to enforcing the law that used to be seen at the FEC.