It's all well and good for reform advocates on Capitol Hill to pick a fight with the White House over who sits on the Federal Election Commission. Certainly the numerous partisan spats and stalemates that have brought FEC enforcement to a grinding halt this year suggest that the agency could do with some new commissioners.
But the hold imposed by Sens. Russell Feingold, D-Wis., and John McCain, R-Ariz., to block the confirmation of FEC nominee John Sullivan glosses over a more fundamental problem. The real reason the FEC can't function is that its structure and appointments process are long overdue for an overhaul.
Everyone knows that Congress is perfectly satisfied to chug along with an FEC that is weak and ineffectual.
Some have laid the blame at the feet of President Obama for failing to follow through on promised reforms, both at the FEC and in the presidential public financing system. Obama pledged to fix public financing as a presidential candidate -- even as he rejected Treasury funding and hauled in record amounts of private money.
No wonder progressive activists are getting restless. Reform advocates fret that if the president doesn't follow through soon, the next election will kick into gear and their narrow window to enact changes will close. Feingold has drafted a bill with Sen. Susan Collins, R-Maine, to revamp the presidential public financing system, but it appears to be languishing at the White House.
"It's really clear that nothing else can move until the president moves," noted Meredith McGehee, policy director at the Campaign Legal Center.
But the president isn't the only player in this game. If Congress were champing at the bit to strengthen the FEC and overhaul the campaign finance system, Obama's foot-dragging might look strange. But everyone knows that Congress is perfectly satisfied to chug along with an FEC that is weak and ineffectual, and with a campaign finance system that institutionally favors incumbents.
Even the simple job of picking new FEC commissioners puts Obama on a collision course with influential players on Capitol Hill, on both sides of the aisle. Feingold and McCain have asked Obama to hold off on confirming Sullivan, a Democratic labor lawyer, until the president also replaces two other commissioners whose terms expired in May: Democrat Steven Walther and Republican Donald McGahn.
Reform advocates regard McGahn as the ringleader in a bloc of Republicans who have thwarted FEC enforcement on several fronts. The six-member agency is evenly divided between Republicans and Democrats, and by statute may take no action without a majority.
Yet 3-3 splits have become commonplace at the agency, and Democratic commissioners have publicly challenged the FEC's failure to penalize a string of soft money and disclosure violations -- even to the point of rejecting fines that respondents had agreed to pay.
"This is an unprecedented action to stop the agency from carrying out its statutory responsibilities, and it has to be addressed," complained Fred Wertheimer, president of Democracy 21.
But who's really standing in the way of new FEC appointments -- the White House or Congress? Obama will be hard-pressed to find a GOP nominee who's palatable to both progressives and to Senate Minority Leader Mitch McConnell, R-Ky., a staunch opponent of regulation. And Walther, a Reno attorney, has a strong friend and ally on Capitol Hill -- Majority Leader Harry Reid, D-Nev., whom Walther advised during the senator's election recount battle a decade ago.
The Sullivan hold is just the latest in a long string of FEC confirmation fights that have led to pitched lobbying battles, emotional confirmation hearings and most recently a months-long FEC shutdown.
Which brings us to the FEC's structural problems. In the previous Congress, McCain and Feingold co-sponsored a bill to replace the FEC with a stronger, more independent enforcement agency. The Federal Election Administration Act of 2007 would have replaced the FEC with a three-member federal agency, including a chair who would serve ten years.
In this Congress, that bill is nowhere to be seen. With the many urgent issues now before Congress, from health care to global warming to unemployment, it's little wonder that such arcane matters as the FEC's structure and operations get punted. Still, if lawmakers keep putting off repairs at the FEC, these stalemates over commission appointments will just keep happening again and again.
Nor is Obama the only one holding up broader campaign finance changes. McCain, who once championed presidential public financing, has reversed course and is not backing the Feingold-Collins bill. Nor is he a co-sponsor of a congressional public financing bill authored by Sens. Richard Durbin, D-Ill., and Arlen Specter, D-Pa. That bill has all of five co-sponsors, including its authors and Feingold. How many more would sign on if Feingold and McCain teamed up to throw their full weight behind it?
McCain and Feingold are full of righteous indignation over what they call the "anti-enforcement gridlock" at the FEC. And they are right to agitate for "commissioners with a demonstrated commitment to the existence and the enforcement of the campaign finance laws," as they put it. But they could go much further.