EP. 27 — FIXING THE FEC

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Weston Wamp: I’m Weston Wamp, and this is Swamp Stories, presented by Issue One. 

There is a single agency whose one focus is federal candidates. That includes every member of Congress, as well as presidential candidates. In other words, this agency regulates members of Congress on what is arguably the most important thing to them: the elections that get them, and keep them, in power in Washington.

The Federal Election Commission or FEC for short, plays a critical role: they enforce federal campaign election laws. They investigate complaints and issue rulings or referrals about violations, and they create new rules as needed. 

This may sound straightforward. But in practice, nothing about the Federal Election Commission is straightforward. According to the Wall Street Journal, quote, “Nothing in Washington is as gridlocked” as the FEC. 

Our nation’s campaign finance watchdog is mostly dysfunctional. It’s known for ideological and partisan divides. Some even say it was designed to be a toothless tiger on purpose. The FEC experiences long periods where it doesn’t even have a quorum of commissioners appointed — meaning, it can’t actually do anything. No rulings. No enforcement.

This happened twice in 2020 alone. Think about that. Especially after everything we just went through. For long stretches during the 2020 election cycle, when one billion dollars in dark money alone was spent, the FEC was essentially shut down, missing in action altogether, and therefore unable to fulfill some of its most basic responsibilities. So how did we get here? 

This is Episode 27: Fixing the FEC

Michael Toner: The FEC was created in the shadow of Watergate, when there were real concerns about the Nixon administration politicizing election enforcement through the Department of Justice and otherwise. And so that really was the key reason why the agency was set up, so that you needed to have bipartisan consensus to take adverse action against any candidate or committee.

Ann Ravel: There was a lot of anger about it and dissatisfaction that there was no federal agency that disclosed the sources of money in politics. As a result of that, the Federal Election Commission was established to give full disclosure of campaign contributions and expenditures, and also to enforce the law, because that was something that clearly didn't exist prior to Watergate.

Weston Wamp: You just heard from Michael Toner and Ann Ravel, two former FEC commissioners. 

Toner was appointed by President George W. Bush, and was the commission’s chairman from 2002 until 2007. Ravel was appointed to the FEC in 2013 by President Obama, and she too became the chair for a year in 2015. 

Tracing the FEC’s origins helps give context for the agency that it is today. And as Toner and Ravel point out, it was born during a moment of profound reckoning for the nation. Clearly, there was no cop on the beat in our election system, and everyone saw just how deeply vulnerable that system was. 

So in an effort to rehabilitate the Republican Party’s reputation, and to restore the nation’s trust in our government, the Senate Republican leader at the time — Hugh Scott of Pennsylvania — proposed a federal agency, headed by a commission, to oversee the new campaign finance laws that were being enacted by Congress.

I also reached out to the current chair of the Federal Election Commission, Democratic appointee Shana Broussard, who was nominated by President Trump and assumed office late last year. She was the first commissioner who had previously worked at the FEC, and she was an attorney in the Enforcement Division of the Office of General Counsel.

Chair Broussard: The intended role of the FEC is one, strengthening our democracy, I believe, and protecting the integrity of the federal campaign finance process by providing transparency to the public about money used in federal elections, and two, by fairly enforcing and administering our federal campaign finance laws.

Weston Wamp: To be clear, it’s an admirable and necessary objective that you’d have transparency of all money in federal elections, and enforceable laws for all federal candidates. So why, in the words of Taylor Swift, can’t we have nice things?

Ann Ravel: The FEC at the moment is composed, and this is in the law, composed of six members. At the time that it was enacted, the requirement, and still is, that no more than three can be of one political party. And as a result of that, what has occurred over the years is that there are three Democrats or three, sometimes two Democrats and one independent who really votes with and works with the Democrats, and three Republicans. And in order to take any action whatsoever at the FEC, it requires four votes. 

Weston Wamp: Some critics say that this structure meant that the agency was designed to fail from the start. But, like the vast majority of other federal agencies — like the Federal Communications Commission and the Securities and Exchange Commission — the FEC was originally supposed to have an odd number of commissioners, with the chair usually of the same party as the president.  

But, the powerful Democratic chair of the House committee that oversees the new laws wasn’t interested in creating a robust enforcement agency he felt like might end up snooping around members of Congress. Thus, the Federal Election Commission, with an even number of commissioners, was established.

With the passage of time, the design flaw metastasized and became the main feature, if you will. It’s a paralyzed agency unable to fill its lawful mission. Deadlocked votes. Three Democrats opposed to three Republicans.

And to make matters worse, over the past 15 years, staff levels have significantly decreased, including for essential senior leader and management positions. The agency, understandably, has low morale. One study of federal agencies even said the FEC was one of the worst agencies for a federal employee to work. Meanwhile, the agency’s caseload has surged. As of earlier this year, the agency had 435 cases on its docket, compared to 307 just two years ago.

But in Chair Broussard’s view, at least for a spell, the FEC was able to function. 

Chair Broussard: I don't agree that it was intended to create stalemates. There was a period of time where the agency was productively working together in a bipartisan fashion to be able to effectively enforce the campaign finance laws, but there has been a change within the last, I'd say, 13 years, so that it is been split a little bit more based on the ideological consideration of the law versus the more enforcement of the law.

Weston Wamp: Chair Broussard points to the transformation of federal elections that was caused by the 2010 Supreme Court’s Citizens United ruling as the watershed moment for cooperation — or lack thereof — on the FEC. 

Chair Broussard: I think a great bit of our inability to be able to effectively administer campaign finance laws and to provide transparency to the public, which goes to our mission, is due to that 2010 decision. It's confronted us with issues that we just hadn't encountered before. Because the moment that Citizens United came into place, unlimited amounts of corporate and union funds could be spent independently, including from money from foreign sources, and how this could be disclosed, that became a problem.

Weston Wamp: Right here Chair Broussard undoubtedly has a point: sweeping changes to federal campaigns warranted accountability and oversight as super PACs and 501(c)(4)s quickly began to dominate the landscape of money in politics. A coinciding ideological breakdown at the FEC meant that the opposite happened.

So let’s take a closer look at how the two sides of the commission split apart. 

Michael Toner: It's a question of setting priorities and what type of, for example, enforcement profile do you want to adopt? What types of cases do you really want to prioritize? I've always been a big believer in prioritizing sort of heartland, core violations of the federal election laws: foreign national contributions, illegal coordination, contributions in the name of another, we could go on, there's a number of large-scale corporate contributions.

As opposed to a range of activities where it's a lot more contested legally and constitutionally, in terms of whether the agency can regulate certain activities.

Weston Wamp: Toner is acknowledging the complexities that have come with the Citizens United era in offering a Republican case for the FEC focusing on violations that are widely agreed upon. One of the quote “heartland, core violations” that he referenced is illegal coordination, which is a major cause of FEC stalemates in recent years.

Now, we covered the concept of super PAC coordination in season one, but the gist of it is that Citizens United paved the way for unlimited money into politics so long as it was independent and not being coordinated with a specific candidate or campaign. And this matters because we still have limits on how much can be given to a specific candidate because courts have upheld that unlimited contributions could lead to corruption — or at least the perception of corruption. And so it’s for this reason that enforcing illegal coordination is not an open legal question, but rather it’s at the heart of protecting the intent of the Supreme Court’s 2010 rulings. 

An example of how partisanship has impaired the commonsense of the FEC. Let me explain to you the “b-roll loophole,” which has become a classic example of illegal coordination. By law, a candidate’s campaign and a super PAC can’t coordinate. But in 2014, comedian-turned-Senator Al Franken’s campaign uploaded a series of b-roll videos, generic video of Franken campaigning on a farm and in a factory. On the same day, the campaign and a related super PAC bought TV ads, ads which used footage from the same farm and the same factory. Both the b-roll and the ads even used the phrase that Franken “kept his head down and delivered.” 

Sure enough, an FEC complaint was filed by Franken’s opponent alleging illegal coordination. 20 months later, the FEC deadlocked three to three on whether the campaign and the super PAC had coordinated. More partisanship in Washington, right? The Republicans thought that the Democratic senator broke the law and the Democrats wanted to protect him.

Wrong. It was the three Republican commissioners who voted that Franken’s campaign had not coordinated, although it clearly had.

Ann Ravel: And I think that that says it all. The Republicans believed that it was in their best interest to not enforce the law and to have a very broad interpretation of what the constitution requires in terms of campaign finance disclosure. And because of that, which is truly an ideological decision, they felt that campaign finance enforcement was going to work to the detriment of the party ideologically. And that has been the case to this day.

Weston Wamp: Commissioner Ravel does not mince words about why she thinks Republicans have taken a sort of passive aggressive approach to the FEC.

On the other hand, while pointing out that many who are most concerned about coordination don’t like the rulings permitting unlimited spending in the first place, Toner encourages a bipartisan approach to transparent rulemaking.

Michael Toner: The common denominator is, I believe political actors in America want to know how far they can go. And it's a hyper-competitive political environment. It's a 50-50 country politically. All the more reason that political actors need to know what the law is. And when the agency doesn't enunciate that in very clear ways and creates gray areas, that's where I've seen potential for abuses. Abuses in terms of people pushing the envelope, seeing how far they can go, and saying, "Hey, you didn't clearly indicate that this was unlawful."

Weston Wamp: But it shouldn’t have to be this way, and it's in everyone’s interest to fix those gray areas. 

Michael Toner: I think a lot of times when you're trying to work through a compromise at the FEC, I think the heart of it is you may not get a 100% of what you want as an FEC commissioner, in terms of a regulation you might be voting on or an advisory opinion. But if you can get 90%, 95%, 80%, 75%, and you can get clarity in the law and reach some consensus with your colleagues on the other side of the aisle, I personally thought that was always vital to do. And when the agency doesn't operate in that manner, in other words when the alternative is everybody just returns to their side of the aisle and nothing gets clarified, no regulations get issued, no advisory opinions get issued, I think that's not ideal. And I think when I look at the agency going forward, for example, I really hope that there's an effort to issue regulations in important areas.

Weston Wamp: As I mentioned earlier in this episode, it was Congress that structured the FEC that way it is today. 

And remember, though the FEC was created by Congress to restore confidence in the system, it also brought unprecedented oversight of Congress. A six person commission that would be more likely to gridlock — and therefore less likely to investigate and penalize members of Congress — may not seem to them like a problem that needs fixing. At the end of the day, many members of Congress aren’t too enthusiastic about being accused of wrongdoing, much less being punished for it. So naturally, their interest in overseeing the organization extends to how it functions — or how it doesn’t function.

Ann Ravel: Actually they are presidential appointments, but it has evolved over the years to be nominations by the heads of the majority party and the minority party in the Senate.

Weston Wamp: In a very convenient part of Washington’s nod and wink culture, the leaders of the House and Senate have come to be the de facto deciders of who serves on the commission, even though it’s the president who officially makes the appointments and commissioners must be confirmed by the Senate.  

And Senate Republican Leader Mitch McConnell of Kentucky is the gauntlet through which every nomination must run. While a background in campaign finance issues helps, over the last decade, the real qualification for McConnell has been ideological loyalty to his view of campaign finance law — which is a view notable for its laissez-faire approach to basically any regulation, even to the point of nullifying the law, and refusing to enforce the plain meaning and intent of the statute. 

Mitch McConnell’s hands-off stance and disregard for the law notwithstanding, there are Republicans who believe in having a functional agency to enforce campaign finance law — folks like my dad, former Congressman Zach Wamp, who supports reform, as well as other former member of Congress like Jim Renacci, who cosponsored an FEC reform bill to make it an odd-number commission.

Renacci, a conservative Republican who is likely to run for governor of Ohio, took the position that each commissioner should enforce the law, even if he or she doesn’t agree with it. That has not been the approach, however, that commissioners loyal to McConnell have taken, including most notably former Commissioner Don McGahn, who later became the general counsel for President Trump. 

At this point it won’t surprise you that changing the appointment process is one of the most popular ideas for how the FEC can be fixed. 

Ann Ravel: The appointments should not be through the majority party chair or the majority person in the Senate and the minority, because it overly politicizes those nominations. And instead there should be a blue ribbon commission consisting of former judges or others. Academics, people who actually believe in the law and the enforcement of the law. 

Those people could make the recommendation to the president for the appointments to the FEC. Because what was true when I was on the FEC and often is, is that there were members of the commission who were either people who had worked for the party or worked in the White House or on the Hill for a particular party. So the allegiances were very, very clear, and I was the only person during my tenure who had not worked for the party at all, or for a political candidate at all. 

Weston Wamp: Ravel is among the advocates for reducing the commission to five members. Toner, however, isn’t convinced that an odd number of commissioners would actually reduce partisanship.

Michael Toner: A five person FEC, much like the current FCC, which has five commissioners, it'll function. There's no question about it, and it'll likely be more energetic. But it likely will be operating on a party line vote. And that's what people have to grapple with, is how comfortable they are with that. Some people are fine with it. I would be fine with it, particularly if my party's in the White House and I control the Federal Election Commission. I wouldn't be as comfortable with it, probably, if that weren't the case.

Weston Wamp: There are other proposals for reforms. One would provide a role for administrative law judges to improve enforcement, while another would junk the commission approach altogether and use the model for the FBI or the Office of Government Ethics, both of which are headed by one individual. 

And short of structural reforms, current Chair Broussard wants Congress to consider some of the recommendations that the commission recently sent to Congress.

Chair Broussard: I'm happy to say that we were able to unanimously approve legislative recommendations that are sent to Congress. And those recommendations would give us the authority to be able to implement regulations that could help us more effectively administer the act and would help to, I believe, create more transparency for the public, and would go to the heart of what this is so the American people can understand the enormous amount of money that's being used and who is responsible, and to make sure that we don't have a disproportionate influence based on those with a greater amount of money.

Weston Wamp: Frankly, it’s a step in the right direction that the FEC unanimously agreed on 14 recommendations, some of which would substantially strengthen laws regarding the personal use of campaign funds and so-called scam PACs, which are known to dupe donors into giving to bogus accounts.

Obviously, disagreements will remain about the role of the Federal Election Commission, but having a functional watchdog to enforce federal election laws and take on corruption is as important today as it was after Watergate — especially after it was shuttered for much of 2020. We’ve all got a vested interest in a renewed FEC.

Chair Broussard: We need an FEC that's more decisive so that we can have the truth in political spending. We need an FEC with commissioners that are committed to the mission of the agency. And the mission of the agency is transparency in public spending and spending for our federal elections. We need an FEC that's more decisive so that we can make sure that we protect against foreign influence into our elections and campaign process. And we need an FEC that's more decisive because it creates fairness in the political process and continues to maintain the credibility of our political process. 

Weston Wamp: Broussard, as you’re hearing, is optimistic.

Chair Broussard: I'd like to say that we're going to enter that golden age of the most bipartisan. I'd have to say that the time period prior to the 2010 decision of Citizens United.

But I am hopeful as the chair of the agency and aware of how hard and dedicated our staff is, and that I do believe that we have a full complement of the commission so that it builds a better effort towards consensus, that we can reach that golden stage again. Kind of hopeful, but that's kind of me.

Weston Wamp: On the next episode of Swamp Stories we are going to sit down with former Democratic Congresswoman Donna Edwards, who turned a lot of heads when she set out on a trip across the country in an RV a few years ago to better understand how Trump voters were feeling.

Thanks for listening to Swamp Stories, presented by Issue One, the country's leading political reform organization that unites Republicans, Democrats, and Independents to fix our broken political system. Please subscribe to the podcast and share it with your friends. Even better, rate and review it on iTunes to help us reach more listeners. You can find out more at swampstories.org. I'm your host Weston Wamp. A special thank you to executive producer, Ethan Rome, senior producer Evan Ottenfeld, producer Sydney Richards, and editor Parker from ParkerPodcasting.com. Swamp Stories was recorded in Tennessee, edited in Texas and can be found wherever you listen to podcasts.

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