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November
19, 2002 8:45 a.m.
Corrupt
Toothless Tiger Down in the Farm
Is
that what’s really wrong with the FEC?
By Allison
R. Hayward
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Federal Election Commission is called many things: "corrupt"
by Senator John McCain, a "toothless tiger" by any one of a
number of pundits, an insider's "farm team" by the Center for
Responsive Politics, and most recently, the palace guard of the political
parties. This last distinction comes
courtesy of USA Today, that hard-bitten investigative journal
that strikes fear in the heart of wrongdoers everywhere.
In
all seriousness, USA Today has in the past published decent political
investigative work. But that record was not in evidence last week. In
its latest offering, the paper published the findings from its study into
the background of FEC commissioners. The paper was troubled to learn that
18 of the 20 people who have served on the commission have — gasp
— political experience. Obviously, continued the analysis, the commissioners
are destined to protect the interests of the parties over the public.
This argument is
so unpersuasive in so many ways one hardly knows where to begin. First,
political experience should not disqualify a person from functioning as
a regulator of politics. Usually, real-world experience is deemed useful
for a regulator. We want SEC commissioners to know something about corporations,
often through positions within them. We want people in charge at the EPA
to know something about the environment, often from previous careers.
We prefer that the attorney general and solicitor general know something
about law — perhaps not first-hand as a criminal or plaintiff, but
experience as a prosecutor or private attorney is never a disqualification.
We even like it when the president himself has previously served as head
of an executive branch by say, being the governor of Texas. It would be
more reasonable to complain if FEC commissioners had never worked in politics
than complain when most of them have.
Second, the article
implies that political experience unavoidably makes the commissioners
the servants of political parties. Assuming that the information provided
in the article is accurate, the most common "political experience"
in the list of 20 is the five who had served as former congressmen. The
second most frequent experience is as a "congressional aide"
and they number four. Three commissioners of the 20 had national political-party
experience, and one had state-arty experience. Somehow, Hill experience
is thought to transform a person into a partisan automaton. Anyone who
has ever had any experience with Congress would understand that what flaws
members (or staff) may exhibit as a class, overfealty to party authority
(especially in retirement) is not one of them.
The reason the article
takes such care to establish partisanship among commissioners is to explain
why the commission has, among other things, written rules implementing
the new soft money reforms that reformers dislike. The belief that the
soft-money rules are an illegitimate departure from the campaign reform
act passed by Congress is false. So, there is no unacceptable result to
explain.
One example used
in the article is that the commission "rewrote the definition of
solicit" to allow federal officeholders to raise soft money, an activity
generally prohibited in the new law. This isn't true. Congress did not
define "solicit" in the Act. There was nothing to "rewrite."
In the rulemaking process, reformers wanted the FEC to include "suggest"
in the definition, which the commission felt was too vague. The commission
instead used "ask." Whether one likes this result or not, to
claim that it rewrites the law or departs from an acceptable interpretation
of that law is wrong.
Another example is
the decision by the commission not to apply retroactively the statute
to organizations established by political parties. It decided that on
the day the statute became effective (November 6) certain funding and
organizations tests would apply to determine whether a group was "part"
of a party. If, on the date, the group was controlled or funded by the
party, then the same restrictions and liabilities that apply to a party
would apply to it. By drawing the line at November 6, the commission's
decision allowed party insiders to anticipate the new law and form independent
state political groups that could raise nonfederal money. Somehow, the
reformers would have had the commission make the law retroactively effective
(how far back?), despite the lack of any congressional intent, and despite
the unconstitutionality of ex post facto laws.
The FEC is not a
model agency, but many of the complaints contained in USA Today's
piece on the commission are illogical or inaccurate. Partisan background
is not the problem, nor is disrespect for the law. The problems with enforcement
and bureaucracy at the FEC may be rooted in something else — a healthy
skepticism in our political institutions over giving power to the "political
police."
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