If you were to seek out a poster child for all that is broken in Washington, you could find no better candidate than the Federal Election Commission.
The agency that oversees our campaign finance system, by law led by three Democratic and three Republican appointees, has come to a complete halt because of partisan deadlock. For five years, it has written virtually no significant regulations and done virtually no significant enforcement of election law.
If you’ve been thinking of breaking federal election law, this would be an excellent time to do it, because the chance of being caught is close to nil. There is no cop on the beat.
But last week, a Democratic commissioner took a bold gamble to change all this. She did it with a method that has become arcane in Washington: She offered a concession.
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She sided with the commission’s three Republican members to break a logjam that has persisted for nearly five years, allowing the agency finally to draft rules consistent with the Supreme Court’s 2010 Citizens United decision. In return, the Democratic commissioner, Vice Chairman Ann Ravel, is expecting reciprocal concessions from her Republican colleagues.
Whether Ravel gets those concessions will be a key test of whether the FEC, and compromise generally, can still work in modern Washington, or whether the GOP is so reflexive in opposition that there is no hope in even trying to negotiate.
Republican commissioners were ebullient. “Today is a good day for the commission,” said Caroline Hunter, hailing Ravel as “very cooperative and a pleasure to work with.” Before Thursday’s 4-2 vote, the chairman, Lee Goodman, proclaimed that “it will be a good day for the Constitution.”
But Ravel’s olive branch to the Republicans brought complaints from advocates of campaign finance reform, including Democratic commissioner Ellen Weintraub. “I’m sorry, I’m going to ruin the kumbaya moment here,” she told her colleagues. By keeping donor disclosure requirements (the top Democratic priority) out of the new regulations, she said, her colleagues were willing to “rig the game” and to encourage “this explosion in dark money.”
Weintraub told me later that she doesn’t expect Ravel’s gamble to pay off. “I haven’t seen much reciprocation over the last number of years,” she said.
I share Weintraub’s skepticism – and, for that matter, so does Ravel, former head of California's Fair Political Practices Commission.
“I don’t know if I’m going to succeed,” she told me, but “if we didn’t do this we were never going to get anything done. … I’m too old to have a job where I don’t do anything. So what I’m hoping, and I don’t see any other way to break the logjam, is to show good faith.”
Anything is worth a try. Public Citizen’s Craig Holman, looking at FEC data, found that votes on enforcement actions dropped from 1,036 in 2003 to 135 in 2012 (the pattern has persisted in 2013 and 2014, he said). Of those, an increasing proportion (19 percent) are split votes along partisan lines. Offenders have increasingly used such split decisions to justify continuing their activities. The number of proposed audits and rules has similarly dried up.
“There’s no enforcement of anything of significance,” Holman said. “Every group that goes before the FEC understands that this agency is going to deadlock on any enforcement actions, which means they will not get penalized.”
The problem can be traced back to Mitch McConnell, the Senate Republican leader who decides which Republicans get named to the commission. And he has made sure that they are uniformly hostile to campaign finance restrictions, including requiring donor disclosure of big-money nonprofits, which have proliferated in campaigns in the wake of Citizens United. But the deadlocked FEC continues to protect the anonymity of those buying elections.
Ravel secured a promise from the Republicans to have a hearing on disclosure in February, but with no guarantee of any action. And the Republican commissioners made their hostility to disclosure clear at Thursday’s session.
The FEC shouldn’t “achieve through regulation that which could not be achieved through legislation,” proclaimed Matthew Petersen, pointing to Congress’ recent failure to pass tighter disclosure requirements. Hunter added righteously: “The FEC should not use rulemaking to circumvent the legislative process.” Both ignored the fact that existing disclosure laws aren’t being enforced by the FEC.
It doesn’t look as if Democrat Ravel’s concession will be reciprocated, either in new disclosure rules or in increased enforcement. “I think it’s going to be very difficult,” she admitted.
But her olive branch was still a worthy effort. At the very least, it will call the Republicans’ bluff.
Follow Dana Milbank
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