The first page in any handbook for creating a government regulatory commission would lay out something fairly obvious: There has to be an odd number of members. Anything else could wind up looking a little like the current post-Scalia Supreme Court, which has issued several rulings that haven’t settled anything at all because the justices have evenly split. Decisions with any actual staying power must wait until another member is confirmed and ties can be broken.
What if the regulatory commission’s membership is effectively controlled by the two biggest political parties, with each faction holding half the seats? And what if the commission’s job is to enforce campaign finance laws? Then it’s not really a regulatory and enforcement commission at all, but simply another arena for the eternal duel between Republicans and Democrats. As if we didn’t already have enough of those.
And what if one of those parties just doesn’t like or respect the laws that the commission is supposed to enforce, and therefore won’t enforce them?
Then you’d have the worse-than-useless Federal Election Commission, the six-member body whose three Republicans have, in recent years, said no to virtually any kind of enforcement against donors and candidates (the three Democrats generally vote in favor of enforcement actions, but by the commission’s design they never prevail). It’s useless because it rarely produces a majority ruling. And it’s worse than useless because its failure to enforce campaign finance laws encourages law breaking while making suckers of candidates or donors who, for reasons of conscience, opt to respect the law. Any system that rewards the law-breakers and penalizes the law-abiders is corrupt.
Eight leading campaign-finance watchdogs recently endorsed a bill by Sen. Tom Udall, D-N.M., to replace the FEC with a new five-member enforcement agency that would be designed to remain independent of both major parties, and it’s certainly time to consider alternatives. The FEC was Congress’ attempt in the post-Watergate era to impose some ethical rules that would curb, or at least not encourage, political corruption, and it worked, to an extent, for a while. Not anymore. In this crazy election year, it’s hard to detect any value that the FEC adds to democracy, campaigning or justice.