Winston Churchill once said, “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.” If he was around today, he might say something similar about the Federal Election Commission. It might be the worst way to enforce campaign finance laws, except for all of the alternatives.
Yes, the FEC can be slow to act. And yes, some bipartisan agreement among Republican and Democratic commissioners is necessary for it to do anything. But that’s the way it is supposed to work, and it is working.
On Oct. 9, the FEC approved new rules instituting landmark Supreme Court decisions in Citizens United v. FEC and McCutcheon v. FEC. In guiding the FEC to this moment, Chairman Lee Goodman and Vice Chair Ann Ravel showed substantial leadership and demonstrated how the commission is supposed to act.
The product of post-Watergate reforms, the FEC is made up of six commissioners, with no more than three from any one political party. The purposefully bipartisan structure of the FEC ensures that it cannot be abused by one party or the President to hamper political opponents, a major concern after Richard Nixon’s presidency.
However, as we all know, getting the two parties to agree is not always a simple task. Every time the commission reaches a 3-3 tie vote, you can count on disappointed parties to scream bloody murder and rail against gridlock in response. The New York Times even recently advised giving the president the power to appoint a deciding vote when 3-3 ties occur, which would essentially make the FEC an arm of the President’s party.
This line of criticism is deeply misguided. A partisan election watchdog is no watchdog at all — it is an attack dog. The commission must speak for both parties in order to protect First Amendment rights and maintain the public’s trust, a key lesson of the IRS scandal. When an agency under control of the president starts investigating his political opponents, it creates an appearance of corruption and sows mistrust, even if done with good intentions.
The Citizens United rule-making shows that bipartisanship does not paralyze the commission even as honest disagreements about the law slow it down. For years, Democratic commissioners refused to issue regulations complying with the Supreme Court’s ruling unless they also included expansive new disclosure requirements unrelated to the decision and without a clear statutory basis. Although Citizens United did not change disclosure laws in any way, its unpopularity among Democrats likely led to the Democratic commissioners seeking expanded disclosure as a consolation for codifying the ruling in its regulations.
An agreement reached by the Republican Goodman and Democratic Ravel broke the impasse and opened the door for new regulations. It’s a praiseworthy moment for an agency that has often been derided for deadlocking on key issues. Ravel clearly supports expanding disclosure, but also recognizes the need to provide regulated groups with clear, up-to-date guidelines.
The new regulations will be welcome news to donors and groups who have been forced to operate without proper guidance in the past two election cycles. It’s hard to have a level playing field with out-of-date rules that the Supreme Court has declared unconstitutional. Groups with a sophisticated understanding of campaign finance laws and court decisions had a significant advantage over grassroots organizations relying on the outdated regulations on the FEC website.
By agreeing to implement new regulations compliant with both Citizens United and McCutcheon, the Commission scored a victory for advocates of straightforward regulation that every citizen can understand. In doing so, they showed that the core feature of the FEC’s design — its bipartisan structure — is not a bug. It is a bulwark for the protection of First Amendment rights.
Luke Wachob is the McWethy Fellow at the Center for Competitive Politics in Alexandria, Virginia. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
