Democrats Aim to Revive a Campaign Finance Watchdog – The New York Times

WASHINGTON Even in a dysfunctional capital, the Federal Election Commission has long stood out for monumental dysfunction.

It has endured years without full membership, months without a quorum and persistent deadlocks between its three Democratic and three Republican commissioners over whether to even begin inquiries into campaign law violations not to mention open hostility in its ranks and longstanding vacancies in critical posts.

As billions of dollars have poured into American political campaigns in recent years, the F.E.C. has been an idle bystander, a zombie watchdog in the view of many in the campaign finance world from both political parties.

You have literally seen the referee leave the field, said Representative Derek Kilmer, Democrat of Washington and a longtime proponent of shaking up the commission.

The F.E.C. is in dire need of reform, Trevor Potter, a former Republican-appointed chairman of the agency, told Congress last month.

Yet as the Senate prepares to begin work on a sweeping voting rights and elections overhaul bill, the two parties are bitterly divided over a proposal to restructure the enforcer of campaign finance rules, a central plank of the legislation. It is a significant reason Republicans oppose the measure so strongly.

The bill would reconfigure the panel from being evenly divided to having a 3-to-2 split, making stalemates far less likely, giving more power to its presidentially appointed chairman and building in stronger enforcement mechanisms.

Senator Mitch McConnell, Republican of Kentucky and the minority leader who has long fought against campaign finance restrictions including by steering like-minded allies onto the commission placed revamping the panel at the top of his list of examples of Democratic overreach in a measure he said was stuffed with outlandish ideas.

First, I would list turning the F.E.C. from the judge into a prosecutor and giving the party of the president the opportunity to harass opponents, said Mr. McConnell when asked to itemize his objections to the bill. Completely outrageous.

He and fellow Republicans argue that the commissions overhaul would set off a series of back-and-forth partisan campaign investigations each time power shifted in Washington and the makeup of the panel changed.

I think that is a mistake, said Senator Richard C. Shelby, Republican of Alabama and a senior member of the Rules Committee that is scheduled to take up the elections and campaign bill in May. One group will go after the other. With Republicans in control, they will go after the Democrats, and vice versa.

He also questioned whether it was necessarily bad that the commission often could not agree on enforcement measures.

Maybe they dont need to, he said. Most things are disclosed, and you all are sure watching, he said of the news media.

Democrats suspect that Mr. Shelby nailed the true reason that Republicans oppose the overhaul that they prefer the tightly leashed watchdog that exists now over an empowered election commission that would rigorously carry out the law.

Republicans want to keep it broken because they want people to be able to skirt the law with impunity, said Senator Chris Van Hollen, Democrat of Maryland and a proponent of the changes. The problem is that it is so broken, people have accepted it as the status quo. But campaign finance laws are meaningless if they are not enforceable.

Democrats and other advocates of giving a new start to the commission which was established in the post-Watergate era also take issue with the idea that it would be weaponized, saying sufficient safeguards would be built in.

Besides the consequential change in the makeup of the commission, the legislation would also give its chairman much more say in managing the agency and filling important staff positions, such as the general counsel, that have sometimes sat empty for years. New enforcement mechanisms would be instituted as well.

But the main bone of contention for now is the plan to revamp the membership of the commission itself.

Under the proposal that has passed the House and is being considered in the Senate, the evenly divided six-member panel would be reduced to five members to avoid the regular ties that now prevent it from doing much besides building a huge backlog of cases.

The legislation calls for the commission to be composed of two members from each party and one independent. Rather than the informal practice today of having congressional leaders handpick candidates for the job a tradition that has provided Mr. McConnell with significant influence over Republicans named to the commission a blue ribbon advisory panel would be created to recommend prospective commissioners.

The legislation recommends that the members include knowledgeable retired federal judges, former law enforcement officials and election law experts.

The idea is to try to take this away from being a purely political appointment and rather have folks who have expertise around campaign finance law and add legitimacy to the agencys efforts, said Mr. Kilmer, the Washington congressman, who said he modeled the new commission on a redistricting panel in his home state.

Needless to say, there is some skepticism about whether the independent member of the commission could be truly independent or instead just be a partisan in disguise who swings the commission in one partys direction. But the legislation specifies that an independent member would have to have had no affiliation or connection with either party for the previous five years.

Critics are not convinced. In a letter to congressional leaders, nine former Republican commissioners denounced the legislation as a partisan takeover with likely ruinous effect on our political system. They argued that the panels unique role in overseeing political cases made partisan parity mandatory.

In our experience, the agencys bipartisan structure both assures that the laws are enforced with bipartisan support and equally important, that they are not perceived as a partisan tool of the majority party an electoral weapon, if you will, they wrote.

Mr. McConnell said that the creators of the commission recognized that it could not be perceived as partisan if it was to have any credibility at all.

The F.E.C. was set up 3-to-3 when Democrats had huge margins in Congress, he said. They could have done anything they wanted. It never occurred to them that you would have the police, in effect, all be on one side.

Supporters of the overhaul say the commission was created when campaign finance was a less partisan issue than it is today, and added that the agency operated much more effectively in its earlier years. And the commission changes have backing from some congressional Republicans, though no Republicans in the House or Senate support the overall elections bill.

Backers see the changes as a way to make the panel function more like other big regulatory agencies in Washington such as the Federal Communications Commission and the Securities and Exchange Commission. They also recognize that reshaping the commission could mean that decisions will not always go their way as the membership shifts. But they say they are fine with that outcome.

I really do take issue with this notion that the presidents party would automatically dominate the commission, said Daniel I. Weiner, a lawyer at the liberal Brennan Center for Justice and a former legal counsel to a Democratic commission member. But I would still rather this be an agency that was periodically run by people I disagree with than an agency that is just paralyzed the way it is now.

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Democrats Aim to Revive a Campaign Finance Watchdog - The New York Times