Politics & Policy

Dear FEC, Trying to Get More Women Elected Is Not Your Job

(Scott Olson/Getty)

One of the biggest problems in Washington is the overreach of federal agencies, many of which go far beyond their limited mandates. Instead of simply carrying out the duties assigned to them under federal laws, they invade the province of Congress, which is supposed to hold hearings, formulate public policy, and create the federal laws that these agencies enforce.

Take Federal Election Commission chair Ann Ravel’s May 12 forum on “Women in Politics.”

The FEC was created in 1975 to enforce the Federal Election Campaign Act (FECA), which governs the raising and spending of funds in federal elections for president and Congress. The federal statute that authorizes the FEC (2 U.S.C. § 437c) lays out its duties very succinctly: 1) enforce federal campaign-finance law, 2) issue regulations implementing the law, and 3) provide advisory opinions to affected individuals, candidates, and political organizations that explain the requirements of the law.

Congress also very specifically made the FEC a bipartisan agency. The bipartisanship is crucial, given that the agency is charged with the sensitive task of administering federal law affecting fundamental First Amendment activity: political speech and association. There are three Republican and three Democratic commissioners, and it takes four votes for the FEC to take any action. Yet Ravel has acted unilaterally to convene the “Women in Politics” hearing. There has been no vote by the commissioners to authorize the use of FEC funds and resources for this “project.”

The notice for the forum says it is intended to focus on the “challenges women face in the political arena.” Its purpose is to “begin an open discussion with scholars, social scientists, political practitioners and the public to consider why, despite record-breaking numbers of women in the 114th Congress, women remain significantly underrepresented in politics at all levels of government.”

I’m not sure that it is any business of Congress to determine who should be running for public office.

Yet such basic public-policy issues are the primary responsibility of Congress, not the FEC (although I’m not sure that it is any business of Congress either to determine who should be running for public office). This has nothing to do with enforcing the FECA, issuing advisory opinions, or investigating and auditing the campaigns of federal candidates.

In addition, the FEC has jurisdiction only over federal elections, not state and local elections that are governed by state law. Yet this forum is examining supposed “underrepresentation” at “all levels of government,” which would include state and local government.

And what does underrepresentation mean? That there is a problem unless the number of elected women exactly matches the ratio of women in the general population? The voting-age population? Neither the Constitution nor federal election law guarantees proportional representation. In fact, the Voting Rights Act has a specific warning (42 U.S.C. § 1973) that the Act doesn’t establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.”

As for its being an “open discussion,” a recent Fox News article points out that almost all of the witnesses selected by Ravel are Democratic activists. It includes a New Republic editor, Rebecca Traister, who described herself, in a New York Times magazine essay, as a “devoted Hillary Clinton supporter” and also, according to Campus Forum, as a “super brow burning feminist lefty pinko liberal lady.” In 2012, Traister sat on a panel at the University of Michigan entitled “The Republican War on Women.”

Another professor, according to Fox News, has constantly “taken shots at Republicans on his Twitter account” and said, “Everyday racism is what renders the Republican Party lily white.” Out of twelve witnesses on the FEC “Women in Politics” panel, apparently only two are Republicans.

Almost none of them have any actual experience in federal campaign-finance law and regulations. There is no question that the restrictions in those laws and regulations, as well as their byzantine complexity, make it more difficult for challengers to mount effective campaigns to defeat incumbents. But this affects all challengers equally, no matter what their gender, race, or ethnicity. There is absolutely nothing in FECA that affects women more than men or vice versa.

But with only one or two exceptions, these witnesses don’t have enough knowledge of FEC regulations and administrative rules to offer any expert testimony on this issue — particularly not the “international experts,” including one from Mexico and another from the Organization of American States.

Besides being outside of the authority of the FEC’s statutory mandates and thus a misuse of taxpayer funds, Ravel’s spearheading of this forum raises questions about her possible bias in the future. Is she going to be more lenient toward female candidates? Will she be biased against complaints filed by men against women candidates?

Cleta Mitchell, one of the most experienced campaign-finance lawyers in Washington, who regularly practices before the FEC, told me that this forum is an “absolutely outrageous and complete departure from anything and everything the Federal Election Commission has ever done.” She adds that it is clearly outside the scope of the FEC’s statutory authority and that “it is not the agency’s role to pick winners and losers, to decide that some candidates are more worthy than others, or anything of that nature.”

As a former FEC commissioner, I know how busy the agency and its staff are investigating campaign violations and carrying out all their other duties under the law. All the more reason that the FEC should stick to its main job of enforcing the FECA and leave public-policy issues to Congress. It has no business going far outside its assigned duties to bring the goofy gender ideology and politics of the progressive Left and academia into the administration of federal campaign-finance rules.

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