Another Massive Problem With U.S. Democracy: The FEC Is Broken

As cash floods the political system, the federal watchdog is beset with Chinese hackers, staff vacancies, feuding among commissioners, and a huge backlog of cases—to name just a few.
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Four years after the Citizens United decision revolutionized campaign finance, the FEC still hasn't written any new rules interpreting what it means for candidates. (Jonathan Ernst/Reuters)

Just after the federal government shut down October 1, and one of the government’s more dysfunctional agencies stopped functioning altogether, Chinese hackers picked their moment to attack.

They waylaid the Federal Election Commission’s networks. They crashed computer systems that publicly disclose how billions of dollars are raised and spent each election cycle by candidates, parties, and political-action committees.

As minutes turned to hours, the FEC found itself largely defenseless against what may be the worst act of sabotage in its 38-year history. The government had furloughed all 339 agency employees, save for the presidentially appointed commissioners, and not even one staffer had been deemed “necessary to the prevention of imminent threats” to federal property, the minimum measure for keeping someone on the job.

And it happened just months after an independent auditor commissioned by the government warned that the FEC’s information systems were at “high risk” to infiltration—a charge the FEC roundly disputed, saying its “systems are secure.”

This hacking ordeal, confirmed by three government officials involved in an ongoing investigation that included the Department of Homeland Security, marks the nadir of a year that ranks among the commission’s darkest, according to a six-month investigation by the Center for Public Integrity.

An analysis of thousands of records and interviews with more than 50 current and former commissioners, staff members and associates reveals:

  • The commission over the past year has reached a paralyzing all-time low in its ability to reach consensus, stalling action on dozens of rulemaking, audit and enforcement matters, some of which are years old.
  • Despite an explosion in political spending hastened by key Supreme Court decisions, the agency’s funding has remained flat for five years and staffing levels have fallen to a 15-year low.
  • Analysts charged with scouring disclosure reports to ensure candidates and political committees are complying with laws have a nearly quarter-million-page backlog. Commissioners themselves are grappling with nearly 270 unresolved enforcement cases.
  • Staff morale has plummeted as key employees have fled and others question whether their work remains relevant. Among top FEC jobs currently unfilled or filled on an “acting” basis: general counsel, associate general counsel for policy, associate general counsel for litigation, chief financial officer and accounting director. The staff director doubles as IT director.

As the nation heads into what will undoubtedly be the most expensive midterm election in history and a 2016 presidential election that, in no small way, has already begun, the FEC is rotting from the inside out.

Bitter ideological warfare among commissioners and congressional and White House indifference have yielded an agency less able to fulfill its stated mission: to “prevent corruption in the federal campaign process by administering, enforcing and formulating policy.”

Two newly minted commissioners, Republican Lee Goodman and Democrat Ann Ravel, have pledged to find common ground and work to strengthen the FEC’s standing. Odds are that they’ll lead the agency next year as chairman and vice chairman. The other commissioners talk of the agency reasserting itself after months when the six-member commission operated with only four or five slots filled.

But plenty of folks who don’t believe them. The roots of the agency’s dysfunction remain in place, reformers and some former commissioners argue. Only wholesale reforms, they say, could pull the FEC from plunging into irrelevancy.

“The commission just seems to look inward and almost wonder aloud if a decision has an ideological impact, and if so, they shy away from it,” said Frank P. Reiche, a Republican who served as an FEC commissioner from 1979 to 1985. “It’s sad—very sad—and the agency is almost doomed to failure for carrying out its statutory mission unless reform measures are implemented and adopted by Congress.”

 

Born Out of Watergate

The FEC began operations in 1975, created and structured by Congress to be independent—largely in reaction to the Watergate scandal. The fledgling agency’s mandate: enforce federal election laws, especially those that govern how political candidates, parties and committees raise, spend and disclose their money.

The agency is also tasked with administering the public funding of presidential races and standing as a bulwark against those intent on undermining fair elections. It lacks criminal enforcement authority, but uses its civil power to audit and levy fines for people and organizations that violate what’s now 229 pages worth of election laws and 550 pages of related regulations. Its jurisdiction ranges from punishing slam-dunk lawlessness—committees not filing mandatory disclosures or submitting incomplete information—to arbitrating the most esoteric, legalistic questions about cell-phone use or advertisement print size or electronic money.

The FEC’s early years were hardly placid. The commission had few resources. Election law changed regularly during the late 1970s. An untested staff didn’t always perform efficiently. And unlike most federal agencies, the FEC featured three commissioners from each political party—a lineup that frequently made quick action on politically sensitive issues difficult.

“Congress created the agency to be structurally deadlocked,” said Ralph Nader, the consumer rights advocate who ran for president multiple times. “Congress is content to defer to the FEC’s paralysis. It never wanted an agency that would pinch both parties.”

But during the 1990s, as political parties injected unlimited “soft money” into campaigns and elections grew more and more expensive, the FEC’s stature soared and so did its budgets, about doubling between 1992 and 1999. The agency started posting campaign finance disclosures online, and legions of Americans outside the Beltway began using its resources for the first time. Commissioners steadily assessed more fines against non-compliant candidates and committees as commissioners, despite their philosophical differences, did often find agreement on whether someone broke a law.

In 2002, Congress passed—and President George W. Bush signed—the Bipartisan Campaign Reform Act, which among other reforms banned those unlimited “soft money” donations to political parties. The Supreme Court largely upheld the law the following year despite a challenge by Senate Majority Leader Mitch McConnell, a fervent opponent of contribution limits, and like-minded allies.

But election reformers’ celebrations would prove fleeting, thanks in large part to McConnell.

By the presidential election year 2008, the FEC literally couldn’t function—only two commissioners remained on the job as McConnell demanded that the Senate vote on pending nominees as a package, not individually as Democrats wanted. Democrats sought to block the confirmation of Republican Commissioner Hans von Spakovsky, whose temporary appointment had expired and whom they criticized for backing voter-identification laws and taking a largely deregulatory approach toward interpreting campaign laws.

After a half-year idled by too few commissioners to conduct business in the midst of a presidential election, the parties reached an uneasy pact. The U.S. Senate in mid-2008 then confirmed as commissioners Republican Don McGahn—a kinetic lawyer and quick-witted rock-band guitar player who abhorred campaign regulations—along with current Republican commissioners Caroline Hunter and Matthew Petersen and Democrat-backed Steven Walther, who identifies as an independent.

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