In an interview with the New York Times, the Chair of the FEC, Ann M. Ravel, said she’s given up hope of stopping or prosecuting abuses in the 2016 presidential campaign. The paper reported that she was resigned to the fact that “there is not going to be any real enforcement” in the coming election. Additionally, Ravel said “People think the FEC is dysfunctional. It’s worse than dysfunctional.”
Why is the FEC worse than dysfunctional? The FEC, from its creation in 1974, was designed to be dysfunctional, and operate in a perpetual state of gridlock. This is because the six commissioners, who serve staggered 6-year terms are appointed by the President and approved by the Senate, and no more than three Commissioners may belong to the same political party. While it’s theoretically possible that the Commission could have members who are independents, or members of alternative parties, there has never been a Commissioner who was not a Democrat or Republican. Over the years, many of the early regulations/prohibitions on campaign finance have been struck down or narrowed by the US Supreme Court. However, there are still campaign finance laws that serve to hinder campaigns of minor party and independent candidates, but I digress.
In the past seven years, the commissioners of the FEC have voted 3-3 at least 200 times. These tie votes have prevented formal regulations, but have also allowed de facto policy. The New York Times reported last year, “Campaign lawyers of both parties say the deadlocks have profoundly, if informally, affected the rules governing campaigns,” adding, “The splits are consistent enough in spelling out the likely direction of enforcement… that they now advise clients that a 3-to-3 split comes close to official commission policy.” And current commissioner Ellen L. Weintraub said, “The few rules that are left, people feel free to ignore.”
Why then should a worse than dysfunctional commission, in which the chair says there is not going to be any real enforcement of its regulations, exist in the first place? Quite simply, it shouldn’t! Further, there is the argument that the US Constitution does not even authorize the existence of the FEC. It can be argued that since Article 1 Section 4 of the Constitution authorizes Congress to regulate federal elections that it can regulate candidate financing of their campaigns. Roger Pilon, in 1997, wrote for CATO, “regulation must conform to restraints imposed by the First Amendment to the Constitution. And here, the Supreme Court has said repeatedly that, under the First Amendment, campaign contributions and expenditures are protected speech.” Protected speech is just that, speech that is to be protected from regulation, if protected speech could be regulated, it would not be considered protected speech! Further, Article 1 Section 4 authorizes only that Congress can regulate the time, place, and manner of holding elections, not the financing of campaigns for those elections.
Pilon added, “the [Supreme] Court has said that regulations of political contributions and expenditures will be upheld only if they achieve a compelling governmental interest by the least restrictive means.” It’s obvious that FEC regulations carry no compelling governmental interest. Therefore, the FEC as a federal agency, along with its regulatory structure and system of subsidizing campaigns and conventions of the two factions of the Ruling Party, should be abolished!