In Search of Qualified FEC Commissioners

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There is little question that the current dysfunction at the Federal Election Commission (FEC) is due, in large part, to the current membership of the Commission, who have mired the agency in acrimonious debates, petty squabbles and deadlock. In fact, the three Republican commissioners have routinely refused to move forward on cases regardless of their merit, one publicly announcing he has blocked cases because more complaints are filed with the agency against Republicans than Democrats.

While important bipartisan legislation that would reform the FEC has been introduced in Congress, the terms of five of the six commissioners have expired and the makeup of the Commission could be dramatically changed right now if the President would nominate, and the Senate confirm, new commissioners. But few hold out any hope that will happen during the remainder of President Obama’s term. The obvious question is, if the agency is so bad, why aren’t some of the current commissioners replaced?

In a recent article in the Morning Consult, Why the FEC’s Deadlock Won’t Change Any Time Soon, the author, Will Dobbs-Allsopp, claims that the reason there will not be “wholesale change” at the FEC for some time is that “[t]here aren’t enough qualified lawyers in Washington” willing or able to serve as members of the FEC. Putting aside that this may be the first time anyone has suggested that there aren’t enough lawyers of any type in Washington, even he acknowledges it is a “bizarre” reason. It is also absurd and untrue.

Based on sources cited in the article, Dobbs-Allsopp apparently reached his conclusion after talking to Marc Elias, who is counsel to Hillary Clinton’s presidential campaign and has worked diligently to undermine campaign finance laws at the federal and state level, Dan Backer, a Republican campaign finance lawyer who was counsel to the plaintiff in McCutcheon v. FEC, where the Supreme Court struck down the aggregate contribution limits, and Donald McGahn, a former Republican member and chair of the FEC who did his best to make the FEC dysfunctional. All three of these lawyers are vocal opponents of serious campaign finance regulation and represent clients who have the most to lose if new commissioners are appointed to the FEC who actually believe in the law.

According to Elias, the election law bar is small and there are only a limited number of people who could serve as a commissioner on the FEC. Backer argues that the increase in legal work resulting from SuperPAC activity has caused a shortage of campaign finance lawyers, while McGahn adds that “[i]f you’re actually knowledgeable and qualified, you take a huge hit by joining the government.” It’s hard to think of sillier arguments.

The law that established the FEC requires that a commissioner “be chosen on the basis of their experience, integrity, impartiality, and good judgment.” In fact, a commissioner does not have to be a lawyer and the commission has a long history of having non-lawyers serve as members. And, there is certainly no requirement that a commissioner have been a Washington D.C. election law attorney who is representing SuperPACs, political parties, candidates and special interests. As recently as the mid-1990s, three of the six commissioners were not lawyers, and only one had represented party committees or federal candidates in private practice before coming to the FEC.

There is a large pool of individuals at the local, state and federal level, both lawyers and non-lawyers, who have “the experience, integrity, impartiality, and good judgment” to represent the public’s interest in the administration of our campaign finance laws. Many of these people have spent much of their careers in state and local agencies, as staff and elected or appointed officials, because they believe in public service and their highest priority has not been building a lucrative private practice. Likewise, there are many in private practice, some of whom have even represented political parties and candidates, who believe in full and fair enforcement of the laws and have not spent their careers opposing campaign finance regulations or working for officeholders who do.

It is ludicrous to argue that the President would have a shortage of well-qualified potential nominees willing and eager to be commissioners, if he were to only ask and promise to fight for their appointment.

So, what is the problem? Clearly, many of those who do represent SuperPACs, political parties, candidates and special interests like having a compliant, or at least ineffective, FEC. After all, advising your client is so much simpler when you don’t have to worry the laws are actually being enforced. More importantly, many members of Congress from both political parties are also content with the Commission’s current membership. There are those, like Majority Leader Mitch McConnell and many of his fellow Republicans, who are upfront about being satisfied with the current FEC because it keeps the agency hobbled. At the same time, many Democrats, including the President, seem content decrying the lack of enforcement and complaining about the agency, while doing nothing to change the status quo. Worse, they allow their campaign operatives and lawyers to intentionally work to undermine the current laws, safe in the knowledge that the FEC will do nothing and no effort will be made to change the current membership of the commission.

It does not have to be this way. Right now the President has an obligation to nominate and fight for commissioners who have the “experience, integrity, impartiality, and good judgment” to serve on the FEC. If he can’t find such people, it is only because he doesn’t think it important enough to look.

Larry is the former general counsel of the FEC and an expert and adviser on campaign finance and ethics.