House Votes not to Confer More Power on Feckless FEC

Rayburn Building, House of Representatives

Yesterday afternoon, the U.S. House of Representatives voted on H.R. 672, a bill rather inappropriately named the “Election Support Consolidation and Efficiency Act.”  The legislation would dismantle the Election Assistance Commission and transfer some of its most important functions to the Federal Election Commission (FEC) – an agency hardly known for its efficiency (or effectiveness).  Fortunately, enough Representatives saw past the name to the damage it would have done to the administration of our elections, and the bill failed to receive the votes needed to pass. 

But H.R. 672’s consideration by the House -- and the gnashing of teeth over its defeat that will surely follow in the coming days– should not pass by without pausing to examine the folly of putting even more responsibility on the shoulders of the FEC at a time when it is incapable of carrying out its most basic functions.

The Election Assistance Commission – or EAC – was created by the Help America Vote Act (HAVA) in 2002, a bipartisan effort to prevent a repeat of the electoral confusion and distrust that took place in Florida in 2000 when a presidential election hung in the balance.  The independent commission provides technical support and voluntary guidelines for state and local election officials, administers grants to help with HAVA compliance, and certifies voting systems and the facilities that test them.  Its Commissioners and Standards Board are filled with experienced officials who know the ‘ins and outs’ of administering elections in a fair and efficient way.

The EAC stands in stark contrast to the FEC.  The FEC was created in the wake of the Watergate scandal, with the goal of policing the corrupting influence of money in elections.  The Commission– a three-three Republican-Democratic split – is made up of Party insiders who lack the experience with intricacies of election administration that EAC experts possess.  Yet the bill considered today would have charged the FEC with the adoption of voluntary voting system guidelines, assisting with pilot programs to allow for electronic voting by military stationed overseas, and the testing and certification of voting machines and software—all areas far beyond their expertise.

The problem with transferring additional responsibility to the FEC is not simply the fact that the new tasks would fall outside of its core competencies – the problem is that the FEC, or more specifically its six commissioners, has shown no ability to tackle and decide important campaign finance law issues, despite a dedicated and talented staff.  Indeed, repeatedly over the years, the Congressional authors of legislation have been forced to turn to the courts to force the FEC to do its job in the face of the agency’s adoption of rules deliberately designed to undermine the letter and spirit of the laws passed by Congress.  As the Campaign Legal Center and our colleagues wrote to the congressional oversight committees earlier this year, the FEC is “without question, one of the most dysfunctional agencies in the federal government.”  The six Commissioners, five of whom are holding over in office as their terms have expired, frequently divide along party lines and fail to muster the four votes required to take action and enforce the law.  Just last week, the FEC deadlocked on a vote to issue a public notice to announce when they would begin to consider new rules to comply with the Supreme Court’s decision in Citizen’s United.  (That’s right – it wasn’t a vote on the actual rule that they could not agree on – they deadlocked on a vote to put out a notice!)  More responsibility in the FEC’s hands would simply mean more deadlocks and even fewer laws enforced.  Our democracy is too important and too fragile to put more power in the hands of those who have already proven themselves incapable of following the law and common sense.

The fair and competent administration of our elections dodged a bullet yesterday with the defeat of H.R. 672, and both the EAC and voters should breathe a sigh of relief.  But the absurd notion that lengthening the list of laws the FEC refuses to enforce would somehow benefit the electorate should not be allowed to go unnoticed.