Blog — Campaign Finance Reform

October 10, 2012

Is the FEC a Well-Functioning Agency that Virtually Never Has Partisan Deadlocks?

By Adam Rappaport

FEC logoBradley Smith, former chairman of the Federal Election Commission, apparently thinks so. In a discussion Tuesday night about dark money groups that are spending hundreds of millions of dollars on this year’s elections without disclosing their donors, Mr. Smith stood up for the FEC, denying it is dysfunctional and claiming it is not paralyzed by partisan deadlocks. And if you believe that, we have a bridge to sell you.

According to Mr. Smith, partisan deadlocks at the FEC are a myth. “The FEC does not deadlock frequently,” he said. “It deadlocks about 3 or 4 percent of the time. It just virtually never comes up.”

Well, not anymore. The Washington Times reported last week that since 2008, when three new Republicans commissioners were put on the FEC, 3-3 votes have skyrocketed. From 2003 to 2007, the FEC deadlocked on one percent of enforcement matters, but in the four years since it has deadlocked on 13 percent of them. The same is true for audits. The agency deadlocked on 35 percent of audit matters in 2011, compared to 2.5 percent in 2007. A 2011 Public Citizen study of all FEC actions reached the same conclusions.

The sheer number of deadlocks only tells part of the story. As Public Citizen pointed out, the FEC manages to make decisions on routine, non-controversial matters. On controversial questions, however, the agency regularly deadlocks. Just last week, the FEC deadlocked over whether to start a new rulemaking over electioneering communications rules that were at issue in the Van Hollen v. FEC case. In August, the FEC deadlocked over whether an employer could coerce an employee into working for a specific candidate, and deadlocked in December 2011 over whether American Crossroads, a SuperPAC that may not coordinate with candidates, could run ads that were “fully coordinated” with a candidate.

Mr. Smith also defended the FEC’s role as “the enforcement agency with presidential appointees that determines what the regulations are and when something violates the law.” Technically, that’s true. But as the examples just described show, it is incapable of making regulations or deciding on violations in anything but routine cases, and the terms of five of its six appointees have expired.

Perhaps Mr. Smith believes this is how the FEC should be functioning.  We disagree – Congress and the president need to fix the FEC.  Nothing will happen, though, if people think it is working just fine.

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