This Is Why We Can't Have Nice Elections: The Dysfunctional FEC

Can't get rid of a law or agency through legislative channels? Then just do everything possible to keep it from working as intended.
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Stephen Colbert, shown testifying before the FEC, did his best to make a mockery of the body. (Reuters)

A long time ago -- back when the Arab oil embargo was a recent memory, Ringo Starr was still a revered musician, and leisure suits had yet to reach their zenith -- Congress decided the nation needed a watchdog for elections. The creation of the Federal Election Commission was one of the many reforms that followed Watergate. And like many of those reforms (as well as leisure suits and Ringo's reputation), the FEC is a shadow of its former self these days.

The Boston Globe's Christopher Rowland did a great deep dive into the FEC's dysfunction on Monday. He opens with this anecdote:

The free charter flight for Mitt Romney campaign volunteers seemed like an open-and-shut case for the six members of the Federal Election Commission.

A wealthy friend of Romney spent $150,000 to fly as many as 200 campaign volunteers from Utah to a fund-raising phone-a-thon in Boston.

The three Democrats on the FEC agreed with the agency's staff that the charter appeared to violate rules limiting such "in-kind'' gifts to $2,600 per election.

But the three Republican commissioners disagreed, saying Romney's friend merely acted "in behalf of'' Romney's 2008 campaign -- not the illegal "on behalf of" -- and thus the flight was allowed.

With that twist of legal semantics, the case died -- effectively dismissed.

Things only get worse from there. For six months in 2008, in the heat of a presidential race, the six-seat commission simply couldn't act, because every vote requires four votes, and the commission had only two members. Once fully staffed, things didn't get better. Three commissioners are chosen by each party, and every action needs four votes; of course 3-3 splits are frequent, leading to the commission doing nothing. "The commission is taking up far fewer enforcement cases -- down to 135 in 2012, from 612 in 2007. And those cases it does consider often go nowhere," Rowland adds. "The frequency of deadlocked votes resulting in dismissed cases -- like the case of the Romney friend's chartered jet -- has shot up, to 19 percent, from less than 1 percent, according to figures compiled by critics of its performance."

And then there's the level of discourse between Democratic Chair Ellen Weintraub and Republican Vice Chair Donald McGahn. "He in fact does not return my phone calls,'' says Weintraub. "He never has.'' Retorts McGahn, "She doesn't call me. She has my number. She never uses it. If she spent half as much time running the agency as she does attacking me, we might actually get something done.''

What's happening is that -- as McGahn more or less openly admits -- McGahn's agenda at the FEC is to prevent it from doing much of anything. If you think that elections are way overregulated, you'll like that. If you think they're under-regulated, you'll be horrified. But it's hard to argue that the FEC is operating as intended under the authorizing legislation, a point former Rep. William Frenzel, who helped write the law, makes in the Globe story.

This is the latest, and one of the more extreme, examples of what looks more and more like a trend. First, Congress passes a bill with a majority and the president signs it into law. Then, members of the opposing party do everything they can to sabotage that law, even though they know they don't have the power to repeal it. Perhaps Democrats would be doing this if they were in the minority; after all, the incredible explosion of filibusters began with the Democratic minority when Republicans controlled the Senate, though its use has accelerated as a Republican tool against the current Democratic majority. That Democratic minority also tried to stop a policy its members disagreed with -- the Iraq war -- by defunding it, though they did not succeed.

But for now, Republicans are the main offenders. Can't stop Dodd-Frank? Then block President Obama's nominee to head the Consumer Finance Protection Bureau -- not because of any specific objections to him, but instead to object to the duly passed legislative language setting out his duties. Can't repeal the Affordable Care Act, despite dozens of votes? Try to cut off funding to the IRS, effectively preventing implementation of Obamacare. (A close cousin of these efforts is the attempt to "nullify" federal laws by passing state laws that contradict them.) Can't get rid of the FEC outright? Just appoint commissioners who you know will work to throw enough sand in the gears that they'll grind to a halt.

Thomas Frank wrote an entire book accusing the Bush-era GOP of intentionally trying to make government worse so as to undermine faith in it. But let's be charitable and assume that's not what's going on here. Let's assume these Republicans sincerely believe the policies they're blocking would be harmful if implemented -- that Donald McGahn truly thinks elections work best for everyone without an FEC.

It's a fairly easy move, especially if you're on the left, to condemn this sort of behavior in no uncertain terms. The question is what happens when the shoe is on the other foot. Imagine that a Republican president signs into law a bill, passed by a Republican Congress, that privatizes Social Security and creates a bipartisan commission to oversee the transition to individual accounts. Would Democratic voters shrug and call on their senators and representatives to appoint accommodationist members? Or would they want their own Donald McGahns, who would try to stop the commission from carrying out a mandate they saw as destructive? (It's a little hard to imagine today's GOP taking up any sort of sweeping legislation that would require byzantine administrative implementation, though.)

There you have the problem: Anyone can think of a policy he fiercely opposes that he'd like to see blocked. But when your side does it, it's not anti-democratic obstructionism -- it's civil disobedience, a patriotic virtue. The bright line between the two is difficult to draw.

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David A. Graham

David Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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