Reform Could Resurrect FEC's Ability to Oversee Campaigns

The FEC is at a crossroads, and lawmakers may have a chance to change the entire commission in the near future.

President Barack Obama arrives at the White House and enters the Diplomatic Reception Room in March 2012.
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For the first time since George W. Bush was president, the federal bureau responsible for overseeing the country's elections, which has been called "a toothless watchdog" and "as good as dead" in the past, may see some reform.

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Cynthia Bauerly, one of the six commissioners atop the Federal Election Commission, will resign next month, according to the Huffington Post. The unfilled spot, plus the possibility of filibuster reform, could provide the impetus for the White House or Congress to nominate fresh faces as commissioners, five of whom are serving past their terms.

The FEC's primary role is to implement laws regulating money in political campaigns. But critics say the commission has failed to do its job, and is one of the biggest reasons for the growth in secret money in state and national elections.

"In a word, I would describe the FEC's performance as a watchdog as 'dismal,' — the agency is in disarray," says Paul S. Ryan, senior counsel at Campaign Legal Center, a reform group founded by former FEC commissioner Trevor Potter.

In recent years, the FEC has been deadlocked on important decisions more than any time in the past, Ryan says, blaming the commission for the loopholes that have created the "Citizens United era" of campaign finance. By law the FEC must have three commissioners from each party.

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Democratic Maryland Rep. Chris Van Hollen, the ranking member of the House Budget Committee, has called on President Barack Obama "to try and do whatever he can to fix the mess at the FEC," which he called a "dysfunctional organization."

Van Hollen has called on Obama to fulfill promises he made during the 2008 presidential campaign, but the president has only nominated one commissioner, only to later withdraw it.

"The reason there were no nominations, I think, is because the administration knows that any nominations will be blocked by Republicans in the Senate," says Rick Hasen, an election law expert. "I think (Senate Minority Leader Mitch) McConnell is very happy with status quo, which is that the FEC does very little and often deadlocks."

Given that the Senate and its filibuster has been the biggest roadblock to new nominees, the current combination of possible filibuster reform and an unfilled commission seat may provide Obama with an opportunity to act.

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"I think the White House will probably at least try to fill out that seat, it's conceivable that they could do a big grab deal where they would replace all six commissioners at one time," says Brad Smith, a former FEC commissioner and the chairman of the Center for Competitive Politics.

Until that happens, Smith says the commission will operate normally despite its open seat, because any action requires four commissioner votes.

"The biggest thing it does is make it a little harder to get four votes," Smith says. "But Bauerly was rarely the fourth vote — it was rarely her and the three Republicans."

Though Smith says the commission is "a bit more polarized than they have been in the past," he says new nominations won't change much, and that the commission doesn't need fixing. However, observers like Ryan and Hasen say the polarization and ideology have rendered the commission "as good as dead" in recent years. Ryan places the blame on appointing three hands-off Republican commissioners, which he says is "akin to hiring anarchists who believe in lawlessness to run your police department."

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Hasen says despite the window of opportunity, he doesn't think change is in the cards.

"More than likely, the FEC will continue to be the dysfunctional agency it has been."

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