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McCain: Destroy the FEC

August 18, 2008 - by Donny Shaw

(This is part of a series on legislation being sponsored in the Senate by presidential candidates Barack Obama (D-IL) and John McCain (R-AZ). Subscribe to our rss feed to get the rest.)

John McCain (R-AZ) is fed up with the Federal Election Commission (FEC). For seven years he battled an impervious, filibustering Senate to pass the Bipartisan Campaign Reform Act, which was designed to close loopholes in the campaign finance laws overseen by the FEC. He eventually got his bill passed, banning soft money from being contributed to candidates and political parties. But when the FEC went to implement it, it drilled fresh loopholes into McCain’s bill, creating a whole new class of political organizations – 527s – to skirt the law and continue funneling unlimited amounts of money to politicians (click here for a chart from Public Citizen showing all the loopholes the FEC had created within six months of the bill being signed into law).

Frustrated and without hope for ever beating the FEC’s lax regulation through legislation, McCain has concluded that the Commission needs to be destroyed entirely so that a new kind of agency – one that is everything McCain wishes the FEC was – can take its place.

To that end, he has introduced the Federal Election Administration Act of 2007. The bill, which is co-sponsored by McCain’s campaign finance ally, Sen. Russ Feingold (D-WI), would replace the Federal Election Commission with a new agency, re-structured and expanded to more effectively enforce campaign finance laws, to be known as the Federal Election Administration (FEA).

McCain believes that the FEC’s failures to effectively enforce campaign finance laws, which, he says, go back to the agency’s beginning in 1974, are endemic. In fact, he says that “the FEC was structured by Congress to be ineffective” and “to fail from the start.” Since the current system of money in politics tends to help incumbents stay in office, Congress would never create an agency that actually had enough power to change the system, so the thinking goes. McCain explains:

“The FEC has six members, no more than three of whom can be members of the same political party. In practice, this has meant that there have been three Republicans and three Democrats as commissioners. Only stalemate and inaction on key issues have resulted. On important issues the votes have often been cast on a partisan basis, resulting in 3-3 deadlocks. Furthermore, the affirmative votes of four members are necessary for the FEC to act. Therefore, 3-3 ties have led to inaction.”

McCain’s proposed Federal Election Administration would solve this problem by having an odd number of members – three – with a presidentially-appointed chairman who serves a ten year term, and two members from separate political parties who serve six year terms. Furthermore, unlike the FEC, nobody who has been a candidate for office, an elected officeholder, part of a political party, or employed in a position in the executive branch of Government would be allowed to serve on the Administration. Therefore, the FEA would be more independent of political influence and would be forced to reach decisions rather than letting deadlock keep them from closing loopholes and addressing violations.

The FEA would also have enforcement powers that the FEC currently does not have. For example, they would be able to impose civil penalties, issue “cease and desist” orders, report criminal violations to the appropriate law enforcement authorities, and conduct audits and field examinations of campaign committees.

McCain’s bill would also make sure that the FEA is given all the money in needs to f carry out its duties. “Time and time again, Congress has cut [the FEC’s] budget,” says McCain. “This legislation addresses this problem by having the budget of the new Federal Election Administration established by Congress based on a budget request prepared by its chairman and submitted directly to Congress.”

In a 2006 op-ed piece for the New York Times, Jan Witold Baran and Robert F. Bauer, two election lawyers, presented their meta analysis of McCain’s Federal Election Administration Act.

>The grand quest to rid politics of money never concludes; frustration with the results of reform invariably inspires fresh calls for more reform. In 2003 the Supreme Court narrowly ruled that Congress may actively legislate against the “circumvention” of campaign rules, an eerie acknowledgment that the laws, forever failing in their aim, must be continually amended.
>Meanwhile, there are states where campaign finance remains largely unregulated. Virginia, for example, has no contribution limits, no public financing, no prohibitions on corporate or union giving; it simply requires prompt disclosure of campaign income and spending. It does not appear that relatively laissez-faire campaign finance has left Virginia with a dysfunctional and corrupt government, certainly not of the kind alleged to be rampant in Washington.

I’m curious to know what others think – is there progress to be made in campaign finance reform (a la the Federal Election Administration Act), or is trying to regulate money in politics a waste of time?

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