Source: Federal Election Commission.
* States with only one representative.
The FEC under Fire
The Federal Election Commission is a controversial agency (Jackson 1990; Common Cause 1989). It has been roundly criticized for being too harsh, too lenient, too autocratic, too ineffective, too inconsistent and too insensitive to First Amendment rights as well as to the plight of non-incumbent candidates and grassroots groups.
The Commission was charged with administering the FECA, disbursing public funds to presidential candidates, enforcing the expenditure and contribution limits, and providing comprehensive disclosure of political receipts and expenditures. Observers believe the FEC is or should be at the centre of campaign finance reform. But the FEC looks over its shoulder continually for fear Congress is watching - and would disapprove. As a result, the Commission is less able to carry out its central responsibility to make the Federal Election Campaign Act - with its wide scope and extreme complexities - work smoothly and fairly. The Commission has not found a commanding vision that would give the FECA credibility and widespread acceptance.
The Federal Election Campaign Act vests the Federal Election Commission with its authority and designates its responsibilities regarding federal election practices. Although the FEC has jurisdiction over civil enforcement of federal political finance laws, it does not have formal authority to act as a court of law. Like other regulatory agencies, it cannot compel a party into a conciliation agreement, to admit a violation or to pay a fine. The Commission can levy a fine upon a party voluntarily participating in conciliation, or it can pursue litigation in the courts. Nonetheless, complaints regarding federal elections must first be approved by a majority of the six-member FEC; only later can redress and non-voluntary compliance be sought through litigation, or through referral to the attorney general. The fact that the FEC membership is divided equally between the two major parties sometimes has made a majority difficult to obtain.
The agency has had to spend considerable time and resources defending itself, often at the expense of administration and enforcement of the law. Budgets are not keeping up with inflation. The constant drumfire of criticism has sapped much of the Commission’s vigour, strength and support.
A major criticism of the FEC is that it exercises its enforcement powers too selectively, resulting in unjustified costs and burdens on campaigns that must now employ lawyers and accountants to ensure compliance.
Defenders of the Commission contend that many of the criticisms are unfair because the agency is required to follow the law enacted by Congress and is too often blamed for merely implementing the law. In this view, the fault may lie in the law, but the FEC gets the static. The continuing objections to most facets of the Commission’s work are bound to inhibit the healthy functioning of the agency - diminishing its moral authority in administering and enforcing the law.
The most approved and respected functions of the FEC are its disclosure activities - including the easy availability of information through its automated facilities in a ground-floor office - and the compilations of political fund data through its computer services. It can be faulted for not more clearly articulating its many accomplishments in this area and sometimes for its slowness in compiling data in meaningful fashion. Of course, budgetary considerations often slow the compilation process.
In fairness, FEC problems spring less from the agency’s shortcomings than from Congress’ reluctance to create a truly independent commission. It is the kind of commission the Congress wants, as is apparent in the congressional influence on appointments to the FEC. That, in turn, is reflected in the occasional failure to deal with major campaign finance issues, including two recent cases in which the Commission acted only after being forced to do so by the federal courts.
In discussing the complexities of the Federal Election Campaign Act,the late Senator Lee Metcalf once wondered whether office holders should not worry about serving time rather than constituents. His quip, seriously considered, suggests the contradictory nature of the reforms, the conflict between the goals their proponents sought to achieve, and the statutory and procedural constraints their implementation has imposed on the democratic electoral process.
Election commissions are mainly an American innovation. Whether federal or state, they have multiple roles as judge, jury, administrator, prosecutor, enforcer and magistrate. The potential for conflict among these roles is as clear as the tensions they invite and threatens good regulation unless the commissions tread cautiously. Serious enforcement of the law must not chill free speech or citizen participation. An expansive enforcement policy produces an unfortunate political climate. On the other hand, a weak enforcement policy does not raise levels of confidence in the electoral process.
The power to interpret the law is essentially the power to make new law, and the commissions sit astride the political process, empowered to influence the outcome of elections. In these circumstances, legislatures have not been reluctant to restrain the agencies. Yet legislatures have a conflict of interest because their members enact the laws under which they themselves run for re-election. Clearly there is no ideal that can realistically be met.
THE DEBATE OVER LEGISLATIVE PROPOSALS
The 1989-90 legislative session was the closest Congress has come to massively overhauling federal campaign finance laws since the 1974 amendments. This time it was a hint of scandal that prodded both the Senate and the House to pass legislation. But two other factors prevented campaign finance reform from becoming law. One was partisanship: both Democrats and Republicans continued to perceive hidden motives behind each other’s legislative proposals. In addition, the long-standing dichotomy between the House and Senate on this issue again emerged. Although both were under Democratic control, the upper and lower houses of Congress were unable to resolve conflicting interests arising from their different approaches to reform.
After a hiatus of more than half a decade, campaign finance