White House: CLC Urges White House to Nominate FEC Commissioners Willing to Enforce The Law
Today the Campaign Legal Center urged President Obama to take immediate steps to replace those members of the Federal Election Commission (FEC) serving expired terms in order to begin the housecleaning at the agency to ensure our nation's campaign finance laws are enforced. There is much to be done in the wake of the activist 5-4 decision by the U.S. Supreme Court in Citizens United.
Over the course of the last year, the three Republican FEC Commissioners have repeatedly imposed their own ideological agenda rather than enforce laws enacted by Congress, with the result that our nation's campaign finance laws have been undermined time and again. While the non-enforcement problems at the FEC predate the Supreme Court's Citizens United decision, it is more important than ever in the wake of that decision that the FEC be comprised of commissioners willing to enforce the law.
A key part of changing the way business is done in Washington is to insist that the FEC perform its sworn duties. Disturbing the status quo of the White House nominating commissioners selected by Senate leadership for their party fealty above all else will no doubt upset some members of the Senate who have grown used to party apparatchiks heading up the toothless enforcement agency.
But as Legal Center Executive Director J. Gerald Hebert stressed in his letter to President Obama, "it is a fight that your Administration must undertake to be true to the commitments you made during your presidential campaign, at your Inauguration, after the Court's decision and at your State of the Union address."
The full letter follows below:
February 4, 2010
The Honorable Barack Obama
President of the United States
The White House1600 Pennsylvania Avenue, NWWashington, DC 20500
Dear President Obama:
Your State of the Union address makes clear that you recognize the need to address the very serious threat to our democracy created by the United States Supreme Court's decision in Citizens United. The 5-4 decision by an activist Court will allow corporations to use their vast treasury funds to engage in independent expenditures in political campaigns and grossly distorts the very idea of representative democracy. The ruling has opened the floodgates for special-interest money to flow into our nation's elections and exacerbate a system of access and influence-buying that is already threatening public confidence in our democracy.
We understand that your Administration is already working with Congress to craft legislation to mitigate the damage inflicted by the Court, and that is commendable. We are hopeful that Congress, to mitigate the damage of the Citizens United decision, will enact a package of statutory changes, including s tronger laws regarding what constitutes coordination as well as laws to ensure that corporate independent expenditures do not become a means to evade the current statutory restrictions on foreign nationals' roles in U.S. elections.
However, even with these new laws in place, the current Federal Election Commission (FEC) is not up to the job of properly interpreting and enforcing the statutes that its members are sworn to uphold. The current FEC is dysfunctional, with some Commissioners placing party loyalty and ideological disagreement above their sworn duty to uphold the law. It is imperative that your Administration quickly identify and nominate individuals who do not repeat these mistakes and who believe in the laws they are supposed to uphold. It is also critical that you and your Administration work hard to push the Senate to schedule votes on their nominations this spring.
With this Supreme Court decision, a key question becomes which communications are truly "independent" and may be paid for with unlimited corporate funds, and which are "coordinated" with a candidate or party and may therefore not be paid for with any corporate funds. That crucial question is currently before the FEC— a hopelessly deadlocked and politicized agency with three lame-duck, holdover Commissioners. The FEC has so far spent seven years on adopting a coordination rule and has still not managed to write a definition of "coordination" that meets the requirements laid out by Congress in the Bipartisan Campaign Reform Act of 2002. In fact, two federal court cases found that the implementing regulations the FEC did write were woefully inadequate and under-inclusive. Before the FEC again attempts to write new coordination regulations, it needs new Commissioners up to the task and dedicated to strict enforcement of the law and implementation of Congress's language in BCRA.
We cannot emphasize enough the need for you to exercise the important power that, as head of the Executive Branch, is available to you to bring about change at the FEC. That power to name, subject to Senate confirmation, new members of the FEC can have an immediate and positive impact to correct the very serious problems at the FEC and to bring about needed enforcement in the wake of the Citizens United decision. The refusal by the Commissioners to enforce existing laws is as damaging to our democracy as the recent radical and activist decision from the Court.
You have the ability to appoint new Commissioners now. That said, we recognize that there may well be confirmation battles over your nominees, especially if they are cut from a different cloth than those who have brought the FEC to a standstill. In the aftermath of Citizens United, that would be a fight worth engaging in. Indeed, it is a fight that your Administration must undertake to be true to the commitments you made during your presidential campaign, at your Inauguration, after the Court's decision and at your State of the Union address. In light of the Citizens United decision, the time to bring about needed change at the FEC is now.
The Campaign Legal Center stands ready to assist your efforts in any way we can.
J. Gerald Hebert