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.
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.

Presented by

David A. 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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