Roiled in Partisan Deadlock, FEC Is Failing

05/20/2015 10:04 am ET | Updated May 20, 2016

Just last year, a wellspring of hope washed over the Federal Election Commission (FEC), as the appointment of two newly minted commissioners, Democrat Ann Ravel and Republican Lee Goodman, raised the prospects that the election watchdog would once again become a functioning agency.

Sadly, according to a new study by Public Citizen, that hope has been dashed, as the percentage of deadlocked votes remains at unprecedented high levels and the number of enforcement actions has plummeted to all-time lows.

America is plunging head-long into what will be the most expensive federal election in history, with essentially no cop on the beat to ensure that the election is administered fairly and transparently. This is going to be one messy election.

The FEC was not always broken. In fact, it worked quite well through most of its history. Everything changed in 2008, the year that U.S. Sen. Mitch McConnell (R-Ky.) realized he could gut campaign finance laws by selecting three Republican commissioners dedicated to preventing enforcement. On the six-member commission - three Democrats and three Republicans - decisions can be made only by a majority. Deadlocking at 3-to-3 means that no decision will be made and no enforcement action will be pursued.

Prior to 2008, the FEC on average voted on 727 enforcement actions a year and deadlocked on only 1.1 percent of those actions. Ever since 2008, on the other hand, the agency on average has voted on only 178 enforcement actions per year and deadlocked on 15.7 percent of those votes - more than a 14-fold increase in deadlocked votes on just a fraction of its previous enforcement decisions.

Much of the blame for today's sorry state of unregulated money in politics can be placed squarely on the shoulders of five justices of the John Roberts-led Supreme Court, which began this spiral with the 2010 Citizens United decision and its progeny. Nevertheless, there is a great deal the FEC could do (and should have done) to preserve some of the integrity of the campaign finance system.

"Dark money" - money laundered into our elections from secret donors through electioneering nonprofits - exists because the FEC cannot muster four votes to fix the disclosure loophole. Despite the law against candidates coordinating with outside groups, candidates openly set up their own "super-connected" super PACs with no contribution limits, run by former campaign staffers and for which the candidates themselves solicit donations, because the FEC is not willing to promulgate effective anti-coordination rules.

Most of the major presidential candidates have or are still raising and spending millions of dollars outside campaign finance regulations and disclosure requirements in kicking off their campaigns, despite the fact they are supposed to declare "testing the waters" at spending $5,000 and then comply with the contribution limits, all because the FEC is not there to enforce the law.

Penalties levied by the commission last year for campaign finance violations amounted to the lowest on record since the current system for issuing fines started in 2001. And the 2016 election season has only begun.

FEC Chair Ravel said in a recent interview that because of the gridlock, she was largely abandoning hope of reining in campaign finance abuses in the 2016 election. Indeed, the data do not bode well. This may well be one of the most negative and scandal-ridden elections in recent history; it certainly will be an election in which a handful of very wealthy people run roughshod over our democracy, as if it were their personal playground.

But one thing history has shown us: When Americans suffer the indignities of excessive and undisclosed money pushing voters out of the democratic process, we get a little embarrassed and a lot angry - and then demand a return to fair and open elections and accountable government. The 2016 elections may well become an unpleasant spectacle, but expect big changes afterwards.

Who knows, in the course of the election, perhaps the FEC will pay attention to the public disaffection and resume taking its mission seriously.

Craig Holman, Ph.D., is a government affairs lobbyist with Public Citizen's Congress Watch division.