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"Needing" The FEC--And Why.... PDF  | Print |  Email
By Bob Bauer   
December 10, 2007

This article was posted at Bob Bauer's Blog and reposted here with permission of the author.


The Washington Post, faced with the choice, would put aside appointment controversies and keep the FEC in operating condition for this coming election year.  It is not warm toward Commissioner Von Spakovsky but it can abide another term for him if this is needed to avoid, in effect, closing the agency. And while the paper is troubled by Von Spakovsky’s “over the top” rhetoric on enforcement issues and reform positions, it does not find in him the “utter hostility” to the law that its believes Brad Smith, whose appointment the Post opposed, to have displayed.


This is an interesting editorial.  It will ruin the breakfasts of Gerry Hebert of the Campaign Legal Center and others who have put up furious and tireless resistance to the Von Spakovsky appointment.  But the Post position is as much a reflection on the FEC and the campaign laws as it is about Von Spakovsky: it is a meditation on “hostility” to the campaign finance laws, on the expectations for an agency with this charge and these powers, and on the politics of campaign finance enforcement.  It explains why, for the Post and other reform supporters, the FEC can be both “toothless”—a way of saying “useless”—and also, mysteriously, so badly needed.


So it goes with the FEC as beheld by its reform critics: can’t love it, can’t  live without it.  The Post speaks sympathetically of the view that “the FEC is a toothless agency in need of an overhaul.”  The Post does not, for all that, wish to see the agency “crippled”: it is a “referee”, needed fairly urgently “in a critical election year”.   What is that need, if the agency is so weak: why, as the Post says, is “a flawed FEC better than no FEC at all”?


It may be that, on the part of those chronically dissatisfied with the agency’s performance but committed to reform, the need for the FEC is largely psychological.  The absence of the FEC is one more blow, and a fairly hard one, to the conception of a thoroughly and well regulated campaign finance. If no one cares enough to keep the FEC alive—if the practical significance of the FEC’s incapacitation is not enough to worry even reform’s  supporters—the conclusion one might draw is that the law it enforces is not exactly indispensable to the public welfare.


Of course, the answer offered by the Post and others is that the fault lies with the agency and not with the law.  Yet it is hard for the Post and others to say that the law enforcement the FEC is blamed for ignoring is dependent on keeping the agency going.


“Hostility” in the world of campaign finance law abounds on all sides.  It is not just a character flaw or intellectual shortcoming of Brad Smith’s.  For every Smith who is “hostile” to the law—and in his case, hostility has been expressed quite respectably through years’ of scholarship and sustained, rational argument—there are reformers hostile to the Federal Election Commission, who would far prefer to excoriate he agency for the law’s failure to fulfill what they have expected of it.  The hostile forces have a great deal in common: both sides are frustrated with the law, but while one faction blames the FEC for trying to make the work, the other faults the regulators for not making the statutory and regulatory complex look or perform better than it ever can.


The FEC’s woes at the present time are not an accident of history.  Five years after the passage of McCain-Feingold, the high-water mark of reformism, the experience with campaign finance regulation has soured.  No one is satisfied—neither friend nor foe of the “Watergate reforms” at this stage of their development, much modified, more complex and very controversial.  Even the left is having second thoughts. The Supreme Court is a freshly receptive audience for constitutional challenges to further expansion.  And the FEC appointments are hung up in politics with neither reformers nor anti-reformers having much desire or incentive to put the survival of the agency ahead of other, collateral political conflicts.


As noted here previously, the FEC has in fact turned in, in the last years, a creditable performance—on Internet rules, on difficult questions of enforcement such as those presented by 527 activity, and though receiving no credit for it, on turning out rules to implement McCain-Feingold’s command. It has done its best. Evaluation of the FEC, however, will always be dominated by wishful, highly politicized judgments about the law it enforces. And so the agency has a very limited constituency, since the campaign finance laws, except in pure theory, are largely friendless.


But for supporters of the law, the loss of the FEC would  too painfully force attention to this true ground of unhappiness-- to the inescapable limits and disappointments of the law itself.  This is why to some, who remain attached to the conception of extensively regulated political finance, there is a “need” for the FEC—why the allegedly flawed, toothless, hopeless, continually condemned FEC is better than none at all.

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