This article assesses the effectiveness of the Federal Election Commission (FEC) in today's environment by discussing three types of constraints that limit the FEC's authority: contextual, legal, and administrative. The contextual restraint is seen in the unique political position in which the FEC finds itself, regulating its maker and benefactor, the Congress. The legal constraints involve the First Amendment and its interplay with the statutes that the FEC administers. Finally, the article addresses the administrative constraints under which the FEC must labor, and it examines two frequent charges against the commission: the politicalization of its enforcement procedure and the assertion that the FEC pursues petty infractions. The article concludes that the FEC deserves a mixed review, noting that it stumbles in its attempt to keep the foxes out of the chicken coop and the chickens in during congressional elections. The FEC must be made far more independent to be effective.
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References
1.
1. Plato, The Republic, ed. Raymond Larson, Croft Classics (Arlington Heights, IL: AHM, 1979).
2.
2. For a brief but insightful history of the early period of campaign finance regulation, from 1890 to 1920, see United States v. UAW, 352 U.S. 567, 570-77 (1957).
3.
3. The statute, 34 Stat. 864 (1907), was the predecessor of the Corrupt Practices Act, 18 U.S.C. § 602 et seq. (1976 and Supp. 1985).
4.
4. Testimony given before a House committee reviewing election finance in 1906 would be almost totally relevant and timely if offered today. Witnesses then feared the influence of the “great corporations” and the probability of “bought” members of Congress. Samuel Gompers said it was “doubtful” that “the contributions and expenditures of vast sums of money... can continue to increase without endangering the endurance of our Republic.” Compare U.S., Congress, House Committee of Elections, Hearing on Contributions to Political Committees in Presidential and Other Campaigns, 59th Cong., 1st sess., 12 Mar. 1906, with U.S., Congress, Senate, Hearings before the Committee on Rules and Administration, 96th Cong., 1st sess., 1979. The first set of hearings led to the enactment of the forerunner of the Corrupt Practices Act; the second, to the Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 93 Stat. 1339 (1980).
5.
5. For an evaluation of the failure of pre-1974 campaign regulation, made by a “candidate, a fundraiser, and... a member of an investigative panel looking into campaign finance practices,” see Senator Daniel K. Inouye, in U.S., Congress, Senate, Congressional Record, 93rd Cong., 2d sess., 9 Apr. 1974, pp. S01351-53.
6.
6. Ibid.
7.
7. Senator Cook, in ibid., 3 Apr. 1974, p. S9553-4.
8.
8. Congressman Bill Frenzel, in U.S., Congress, House, 93rd Cong., 2d sess., 1974, H. Rept. 1239, p. 140.
9.
9. See Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (1974).
10.
10. The House bill, H.R. 16090, as reported by committee, established a “Board of Supervisory Officers” with seven members: the secretary of the Senate, the clerk of the House of Representatives, the comptroller general, and four individuals, two appointed by the president of the Senate and two by the Speaker of the House, evenly split between the parties. See H.R. 16090, 93rd Cong., 2d sess. § 207(a) (1974); U.S., Congress, House, H. Rept. 1239, pp. 27-31. The Senate bill, S. 3044, established a Federal Election Commission with eight members: the comptroller general, who could not vote, and seven appointed by the president. Two of those seven, however, were to be “recommended” to the president by the Speaker of the House and two more by the president pro tempore of the Senate—split between the parties—with the last three chosen by the president on a two-to-one party basis. S. 3044, 93rd Cong., 2d sess. § 207(a) (1974); U.S., Congress, Senate, 93rd Cong., 2d sess., 1974, S. Rept. 689.
11.
11. See Pub. L. No. 93-443, 88 Stat. 1263, 1280-82.
12.
12. Ibid.
13.
13. Ibid., p. 1287.
14.
14. 424 U.S. 1, 118-43 (1976).
15.
15. The formula, found in Pub. L. No. 94-283, 90 Stat. 475 (1976), is essentially now 2 U.S.C. § 437(c).
16.
16. Though called into doubt by the Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the legislative veto language remains at 2 U.S.C. § 438(d)(2).
17.
17. Added by the 1979-80 act amendments, the four-vote rule is now at 2 U.S.C. § 437g(4)(A)(i).
18.
18. For example, the FEC's failure to meet the challenge posed by independent expenditures—discussed in the present article on pp. 138-41—is in part a contextual one, in that, for example, political forces support independent expenditures; a legal one, given, for example, First Amendment limits from Buckley and Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459 (1985); and an administrative one, in that the FEC chooses not to or lacks resources to enforce vigorously laws that are on the books. Still, while they are related, each of these failings is different and demands a different response. Likewise, a change in political climates—contextual—may produce budget cuts at the FEC—administrative—or a change in the act—legal. The opposite can be true as well. Just the same, differentiation between the categories is useful for our purposes here.
19.
19. This requirement is found at 2 U.S.C. § 434.
20.
20. Clay F. Richards and Gregory Gordon, “The FEC and the Battle with Congress,”Los Angeles Daily Journal, 9 Sept. 1981.
21.
21. For a more detailed discussion of the investigative or enforcement process, see text in the present article under administrative constraints, pp. 141-42.
22.
22. Los Angeles Daily Journal, 9 Sept. 1981.
23.
23. Ibid.
24.
24. Ibid.
25.
25. Ibid. It should be noted that Congress has chosen not to be regulated by other federal watchdogs such as the Equal Employment Opportunity Commission or the Department of Labor's Occupational Safety and Health Administration.
26.
26. Los Angeles Daily Journal, 9 Sept. 1981.
27.
27. These statutes include Federal Election Campaign Act, as amended, 2 U.S.C. § 431 et seq.; Presidential Election Campaign Fund Act, as amended, 26 U.S.C. § 9001 et seq.; Government in the Sunshine Act, 5 U.S.C. § 552b.
28.
28. See, for example, Buckley v. Valeo, 424 U.S. 1, 14-15; Monitor Patriot Co. v. Roy, 401 U.S. 265, 272(1971).
29.
29. The First Amendment challenge encompasses not only the right of free speech but also the freedom of association. See, for example, Buckley v. Valeo, 424 U.S. 1; Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459. In recognition of the probable First Amendment implications, the act provides for speedy review of constitutional questions.
30.
30. The FEC's resources are discussed in the present article under administrative constraints, pp. 141-42.
31.
31. The plaintiffs were a candidate for the presidency, a U.S. senator up for reelection, a possible contributor, the Committee for a Constitutional Presidency—McCarthy '76, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party, the New York Civil Liberties Union, Inc., the American Conservative Union, the Conservative Victory Fund, and Human Events, Inc. The commission itself was named as one of the defendants in the two suits filed. One of my first tasks in taking over as assistant general counsel for litigation and enforcement for the FEC was to review the FEC's brief and prepare for oral argument before the Supreme Court over the challenge.
32.
32. 424 U.S. 1.
33.
33. Ibid., pp. 14-15.
34.
34. Ibid.
35.
35. Indeed, the commission on several occasions has run into First Amendment difficulties in determining what specifically constitutes a “communication expressly advocating the election or defeat of a candidate” so as to trigger the reporting requirements of the act. 2 U.S.C. § 431(b)(4)(c). The courts have consistently held that in order for the act to withstand a First Amendment challenge on overbreadth grounds, the act's provisions must be narrowly construed. A statute is void on its face under the overbreadth doctrine if it can be applied in order to punish people for constitutionally protected speech. In Federal Election Commission v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979), the district court held that a poster depicting President Ford embracing former President Nixon while wearing a button stating “pardon me” was an expression on a public issue, rather than a statement of advocacy for or against the reelection of Ford. Therefore it constituted protected speech immune from regulation by the act. Likewise, in Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980), the appellate court held that the distribution of a member of Congress' voting record on certain economic and tax issues did not fall within the act's requirement of express advocacy of the defeat of the member of Congress and, therefore, could not be regulated by the FEC.
36.
36. See, for example, the discussion of the FEC's reluctance to enforce section 9012(f), in the present article on pp. 139-40.
37.
37. Congress recognized the potential for abuse posed by independent expenditures in debating the 1974 amendments to the FECA and expressly included limits on such expenditures, noting that controls were essential in order to preclude rendering the direct-contributions limits meaningless. “Admittedly, expenditures made directly by an individual to urge support of a candidate pose First Amendment issues more vividly than do financial contributions to a campaign fund. Nevertheless, to prohibit a $60,000 direct contribution to be used for a TV spot commercial but then to permit the would-be contributor to purchase the time himself, and place a commercial endorsing the candidate, would exalt constitutional form over substance. Your Committee does not believe the First Amendment requires such a wooden construction.” U.S., Congress, Senate, 93rd Cong., 2d sess., S. Rept. 689, pp. 18-19.
38.
38. The loophole of independent expenditures has led to “the infusion of massive PAC [political action committee] expenditures into the political process.” See Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct., p. 1479.
39.
39. See Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980), aff'd by an equally divided court, 455 U.S. 129 (1982).
40.
40. 105 S. Ct. 1459 (1980).
41.
41. Ibid., p. 1469.
42.
42. Ibid., p. 1479 and n. 12.
43.
43. Specifically, the complaints alleged that the candidates to be benefited by the expenditure had been consulted concerning the best means of utilizing the expenditure in order to further the candidates' interest.
44.
44. Los Angeles Daily Journal, 9 Sept. 1981.
45.
45. Ibid.
46.
46. See 2 U.S.C. § 437g(a).
47.
47. Specifically, the FEC, unlike other federal agencies, has the authority to bring suit without Justice Department approval. See 2 U.S.C. § 437d(6). It also can negotiate conciliation agreements requiring an admission from the purported offender. 2 U.S.C. § 437g(a)(4)(A)(i). Because it holds no enforcement hearings prior to bringing suit, it has been labeled “investigator, prosecutor, judge and jury.”Senator Ted Stevens, quoted in Los Angeles Daily Journal, 9 Sept. 1981.
48.
48. See, for example, Federal Election Commission, Annual Report (Washington, DC: Federal Election Commission, 1984), p. 60.
49.
49. Los Angeles Daily Journal, 10 Sept. 1981.
50.
50. See Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459.
51.
51. Ibid., p. 1463.
52.
52. Ibid.
53.
53. Clay F. Richards and Gregory Gordon, “FEC under Attack: Nitpickers Persist,”Los Angeles Daily Journal, 10 Sept. 1981.
54.
54. Ibid.
55.
55. See Federal Election Commission v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.D.C. 1981), cert. denied, 454 U.S. 897 (1981).
56.
56. Interestingly enough, the MNPL had supported Jimmy Carter for president in 1976, but it subsequently became disenchanted with his politics.
57.
57. See Federal Election Commission v. Machinists Non-Partisan Political League, 655 F.2d, p. 388.
58.
58. Ibid.
59.
59. 2 U.S.C. § 437f.
60.
60. Subsequent to the SunPAC opinion, the commission changed its method of making public a request for an advisory opinion, as required by the act. 2 U.S.C. § 437(c). Instead of publishing said requests in the Federal Register, it now only publishes notice of receipt of said requests in its monthly newsletter. Neither the act nor the commission's regulations require actual publication of advisory opinion requests.
