It is hard to identify a federal agency in Washington more dysfunctional than the Federal Election Commission. Terms have expired for five of the six commissioners, and by next spring, the entire commission will be a lame duck if nothing is done. The number of enforcement actions — at the core of the FEC's mission — has fallen to an all-time low. Created in the aftermath of the Watergate scandal, the commission now behaves as an immobilized observer while campaigns are swamped with a tidal wave of hidden cash.
At the heart of the trouble is the way the commission was structured when it was established in 1974, with three members from each party. To approve any action requires four votes. Political deadlock has paralyzed the commission in the past few years, leading to split votes, three-to-three, that result in no action on enforcement, auditing or advisory matters. The commission's three Republicans have repeatedly used this tactic to undermine election laws that they oppose on ideological grounds. According to a Dec. 12 letter sent to President Obama by nine groups advocating campaign finance reform, official actions by the FEC in 2012 amount to only one-tenth the number pursued annually before 2008.
Under law, the commissioners are appointed by the president and confirmed by the Senate. But long-standing practice has been for congressional leaders to suggest appointees and the president to routinely submit them. This process has run into the sand and led to paralysis. The commissioners are beholden to the politicians they are supposed to regulate. It is time for change.
When he was running for president in 2008, then-Sen. Obama recognized this. He promised to strengthen the FEC through appointment of people who have “a demonstrated record of fair administration of the law and an ability to overcome partisan biases.” But Mr. Obama did not follow through. With the exception of one unsuccessful appointment in 2009, he has failed to nominate anyone to serve on the commission.
“Today's Federal Election Commission is a broken agency that has itself become a national campaign finance scandal,” the nine groups declared in their letter to the president. They pointed out that FEC rules, when they are approved, have narrowed the requirements for disclosure of campaign donors.
What is to be done? In the near term, the president could junk the old system of cooperating with Congress on appointments. While ultimately the Senate can block confirmation, the president has the power to make recess appointments. He could put fresh faces on the commission and not just give in to business as usual.
In the longer term, the current agency should be discarded. The nation needs a real enforcement organization, capable of decisive and timely action and able to impose penalties. The current Failure to Enforce Commission ought to be put out of its misery.