There is no doubt whatsoever that the Federal Election Commission is broken.
The agency in charge of enforcing our nation’s campaign finance laws is moribund by ideological stalemate, leaving the laws largely unenforced. It is broken not because of its staff, which is hardworking and professional. It is broken because of its leadership; the six commissioners – three Democrats and three Republicans – routinely deadlock 3-3 along party lines, resulting in a “no decision” on whether to enforce the law in any particular case. No decision means no enforcement.
The agency began its collapse rather recently. In 2008, Senate Republican leader Mitch McConnell realized he could render the campaign laws impotent by selecting three GOP commissioners committed to preventing enforcement. McConnell selected Don McGahn, Caroline Hunter and Matthew Petersen, who marched in lockstep. This strategy had an immediate impact. Public Citizen found that deadlocked votes on enforcement actions skyrocketed from less than 2 percent throughout the FEC’s history to about 19 percent in 2012. At the same time, the number of enforcement actions dropped from an average of more than 700 a year to 135 in 2012.
In 2013, McGahn, the ringleader of the obstructionist bloc, left the agency along with one Democratic commissioner. Their replacements were Republican Lee Goodman, a respected election lawyer, and Democrat Ann Ravel, the head of California’s Fair Political Practices Commission instrumental in uncovering a massive $15 million “dark money” scheme in the 2012 election. With two new respected commissioners, there was hope that the gridlock would end.
That hope was fleeting.
Though FEC commissioners seemed more civil, the deadlocks continued. The Washington Post found that last year, of 132 enforcement cases, the FEC acted on only 16 violations and issued $206,235 in fines – among the least in 30 years.
Simply put, when it comes to money in politics, there is no cop on the beat – and the major political players know that almost anything goes.
When someone considers running for federal office and raises or spends more than $5,000, under the law they are “testing the waters” and must follow contribution limits. But absent enforcement, few of the potential 2016 presidential candidates have complied. Instead, they are creating their own super PACs for unregulated fundraising.
Republican Jeb Bush is on track to raise tens of millions of dollars, giving Democrat Hillary Clinton a run for her money. “Non-candidate” Scott Walker even joked about the game: “Should I choose to be a candidate. ...” Then he added with a grin: “My lawyers love it when I say that.”
Public Citizen found that “independent” super PACs are actually “super-connected” to a candidate. In the 2014 elections, 45 percent of these groups spent all their money supporting a single candidate. Most of these super PACs were established and run by people who previously worked on the candidate’s campaign. Bush asked donors to chip in no more than $1 million each to his super PAC for the time being in order to avoid a negative perception.
Still, the FEC sees nothing. It has dismissed 29 allegations of coordination, according to Ravel, without actually investigating any of these cases.
The FEC’s lack of enforcement makes a mockery of our campaign finance laws. If it is not willing to do its job, the Justice Department can and should fill the void.
In an obvious case of coordination between a candidate and super PAC – the campaign manager simultaneously ran the super PAC – the department stepped in and successfully prosecuted the case.
If the nation’s campaign finance laws are not to be disregarded altogether, we need the Justice Department to fill the void on enforcement. As the 2016 election season begins, the big-money power brokers are running amok. The very integrity of our elections is at stake.
Craig Holman is a Washington, D.C., lobbyist for Public Citizen, a nonprofit advocacy group.