The Federal Election Commission has an unenviable task. It regulates the financing of federal elections, pursuant to authority1 delegated by the very officials whose reelections depend in part on how the FEC regulates. Members of Congress control the FEC’s budget, structure, and scope of authority, and can help or hinder its work as they see fit.
In recent years, the FEC has come under increasingly harsh criticism for a perceived inability to monitor and to protect the nation’s campaign finance system.2 Some of the agency’s most vocal detractors have been FEC Commissioners themselves. Former Commissioner Ann Ravel has, on multiple occasions, accused her Republican colleagues in print of refusing to enforce violations or to apply sufficient penalties to deter bad behavior.3 Former Commissioner Trevor Potter has taken similar stances.4 Commissioner Ellen Weintraub wrote an op-ed attacking former Commissioner Don McGahn, quoting him as saying, “I’m not enforcing the law as Congress passed it.”5 Republican commissioners have defended themselves against these claims of partisanship and said that the agency functions properly,6 but ideological disagreement among commissioners seems to have turned personal, even leading, famously, to conflict over “whether to serve bagels or doughnuts” at a celebration of the FEC’s fortieth anniversary in 2015.7
A dysfunctional FEC has implications beyond the breakfast table. The Commission is empowered primarily to conduct administrative rulemaking relating to campaign finance, to issue advisory opinions, and to enforce campaign finance laws.8 It also administers and coordinates required campaign finance disclosures.9 The FEC performs adequately in carrying out existing, fairly basic disclosure requirements,10 but often fails to reach the consensus required for it to pursue an enforcement action or to undertake administrative rulemaking to update disclosure requirements.11 When it fails to make rules, campaign finance regulations become out of date — unable to keep up with new technologies12 or shifting Supreme Court precedent. When it fails to enforce the campaign finance laws already on the books, they weaken through desuetude as violations go unpunished and the law bends to accommodate more aggressive practices.13 These are serious oversights in an election system increasingly awash in untraceable spending.14
American political parties are further apart than ever before.15 The bipartisan FEC’s inability to reach consensus is, no doubt, due in part to this context, but structural criticisms of and proposed solutions for the agency have been around since the 1970s.16 Many recent criticisms of the FEC point to the same flaws identified decades ago: agency capture, enforcement failure, deadlocked commission votes, and partisan loyalty.17 These have only been exacerbated by increased partisanship.18 Writing in 1988, Professor Robert Mutch was able to survey significant criticisms of the FEC, but could report that on the Commission “[i]deological conflict [was] rare,” and that disagreements between commissioners were typically over interpretive questions and not partisan loyalties.19 Today, by comparison, the agency itself has identified serious morale problems, including a “[t]one and attitude” among commissioners that was “perceived as poor.”20 The partisan climate and the absence of an obvious standard for analyzing agency inaction make it difficult to judge impartially who is most to blame for today’s increase in hostility,21 but, regardless, the agency is not functioning well.
Though it is an “independent agency,” the FEC is hardly independent from congressional influence, and Congress has shown minimal interest, for forty years, in bolstering the agency’s ability to regulate campaign finance. It does not fulfill the role that politicians claimed it would when it was created. By failing to do its job, it exacts a high opportunity cost, occupying a space in the regulatory landscape that could be filled by more motivated and functional actors and serving as an exonerating idol for opponents of reform, who can argue that a lack of action demonstrates that all is well in our campaign finance system.
All is not well, and reformers would be better off giving up on the FEC. Others have argued for eliminating the FEC on the ground that political spending should be less regulated.22 This Note argues instead that eliminating the FEC may be the best way to save such regulation. After describing the agency’s original mission and design in Part I, and explaining how that mission has failed in Part II, this Note suggests that eliminating the agency might be the best way to achieve its ostensible goals. Potter has claimed that “[t]he FEC . . . is too important to our democracy to let wither away.”23 This Note agrees that the FEC’s work is important, and that the agency should not be left to wither, but recommends instead that it be ripped out at the root.
I. Creation of the FEC
The original version of the Federal Election Campaign Act24 (FECA), passed in 1971, was Congress’s first attempt at giving real teeth to campaign finance regulation.25 The original Senate version of FECA would have established an FEC significantly more insulated from congressional influence, but it was watered down in the House by influential opponents of thorough reform including, especially, Representative Wayne Hays, “the House Democrats’ chief fund-raiser.”26 Hays’s version of FECA, which tasked three “supervisory” legislative officers with administering campaign disclosures, was an improvement over the even-less-potent prior regime, but it too proved ineffectual, plagued by recalcitrant legislative officials and by executive laxity in following up on potential enforcement actions referred by the three officers.27
Signing FECA, President Nixon had claimed that it would “guard against campaign abuses and . . . build public confidence in the integrity of the electoral process.”28 By 1974, disclosures about his own campaign finance violations and, more famously, a hotel break-in, had shattered what remained of that public confidence and reinvigorated reform efforts.29 The Senate Select Committee tasked with investigating the 1972 Nixon campaign saw the creation of an FEC as “[p]robably the most significant reform that could emerge from the Watergate scandal.”30 The Committee endorsed a then-pending bill which would have created a commission with “substantial investigatory and enforcement powers,” which, it was expected, would “insure that misconduct would be prevented in the future, [and] that investigations . . . would be vigorous and conducted with the confidence of the public.”31
Congress soon created what was meant to be such an agency, the FEC, by passing the Federal Election Campaign Act Amendments of 1974.32 Already, though, the FEC was not quite what the Select Committee had recommended. The Senate version of the 1974 FECA Amendments, which the Committee had endorsed, provided for seven voting members nominated by the President; but the House passed an amended version with only four, all nominated by Congressional leadership.33 The final bill settled on six, with a variety of nominators.34
The bill’s conference committee did not explain how it settled on this clear step away from an independent FEC.35 President Ford’s signing statement echoed the Select Committee’s optimistic rhetoric, stating that the FEC would “see that the provisions of the act [were] followed.”36 Those provisions established contribution and spending limits, provided for public financing, set reporting and disclosure requirements, and “outlaw[ed] campaign dirty tricks.”37 Signing the bill, the President teased Hays about his role in crafting it.38 But Hays had treated the 1974 amendments no better than he treated the original 1971 FECA.39 His jocular presence at the signing ceremony was, perhaps, a bad sign.
The original design of the FEC reflected the success of Hays’s efforts to limit the Commission’s independence from Congress.40 The Senate version of the Amendments would have given the President control over appointments.41 In the House, Hays successfully pushed for revisions that gave Congress control over nominations.42 The appointments power would be shared: six commissioners would be appointed, two each by the President, the President Pro Tempore of the Senate, and the Speaker of the House.43 For-cause removal protection for commissioners was not explicitly provided,44 but such protection is so central to most conceptions of agency independence that courts have assumed it is included in the design of the FEC and other independent agencies.45
As the House redesigned the FEC away from presidential control, it tightened the agency’s ties to the legislature.46 This appointments scheme would soon be upended by the Supreme Court in Buckley v. Valeo,47 but for the moment each commissioner would need the approval of a majority of both the House and the Senate, and a nominator could not put forward two members of the same political party.48 The Secretary of the Senate and Clerk of the House of Representatives would also serve on the Commission, as nonvoting members.49 After the formative nominations, appointments would be staggered such that each nominator would make one appointment every three years.50 Commissioners were not required to have any particular qualifications or expertise, but instead were “[to] be chosen on the basis of their maturity, experience, integrity, impartiality, and good judgment.”51
The FEC’s powers and ability to exercise those powers also reflected, from the outset, Congress’s hesitancy to create a powerful regulator. The FEC was given the power to investigate campaign finance violations, to pursue or defend civil actions, to issue advisory opinions, to conduct rulemaking in accordance with the Administrative Procedure Act, and to shape relevant general policies.52 Enforcement powers were relatively robust, at least compared to their later form,53 while rulemaking was subject to a veto by either house of Congress.54 The choice to allow policymaking by these methods rather than through adjudication may itself have been a means of limiting the FEC’s ability to pursue violators. Informal rulemaking explicitly requires input from interested parties through the review of and response to comments, while outside contacts are prohibited in adjudication.55 Rulemaking is forward-looking, effective for formulating policies and for guiding future actors, but less effective for policing past action and remedying past wrongs.56
II. Problems
In 1975, around the time that the FEC was created, Professor Richard B. Stewart described an ongoing “Reformation of American Administrative Law” in which Congress shifted from “restricting administrative actions to those authorized by legislative directives” to, instead, an “interest representation model.”57 Under this model, rather than hope for purely objective agencies, Congress tried to facilitate “the full and fair participation” of “an array of interest groups” in agency decisionmaking, in the hopes that they would check administrative discretion.58 The thinking behind this model, which waned in popularity around 1980,59 is seen in the design of the FEC, which, especially in its original structure, served as a microcosm of the overall political landscape. While interest representation might work as a means of arriving at policy compromise between groups with opposing stakes in regulation, it is uniquely ineffective as a method of regulating politics.
In good interest representation–model fashion, Congress designed an agency that, rather than authorizing independent experts to set policy, gave regulated parties a say in decisionmaking. For the FEC, though, the regulated parties were competitors in federal elections — the senators and representatives themselves. Even those who felt serious reforms were needed after Watergate thus had at least some vested interest in a weak FEC. Interest representation works best when opposing interest groups are interested primarily in having the outputs of agency decisionmaking be as favorable as possible to their own interests.60 But this only works if the agency is committed to doing something. When a represented interest group stands to gain from regulatory inaction, and when that group can push the agency toward inaction, the agency’s mission is likely to be undermined.61 Such would be the case for the FEC.
The FEC was created out of heightened public engagement with good-government reforms,62 but it has never been a neutral arbiter of campaign finance. The FEC has been unable to deliver on the promise of post-Watergate reforms, due in part to external setbacks and congressional influence and in part to structural obstacles which have stymied effective regulation and have grown harder to overcome as partisanship has increased. Neither the agency nor Congress seems capable of responding to popular will. This Part discusses what has gone wrong.
1. Trouble in the Courts. — In 1976, Buckley v. Valeo partially invalidated the FEC’s complex appointments scheme. The Court held that FEC commissioners, if they were to exercise the powers granted to them under FECA, must be either “Officers of the United States” or “inferior officers.”63 In either event, it was unconstitutional for FECA to allow these officers to be nominated by anyone other than the President and to require their confirmation by the House; commissioners appointed subject to these provisions could no longer exercise the powers of the FEC.64 Despite some initial uncertainty about whether the FEC would be retained in the wake of Buckley,65 Congress passed another round of amendments,66 now providing that the six voting members would be nominated by the President and subject to approval only by the Senate.67 The bipartisan membership requirement was revised to dictate that no more than three commissioners could be from the same party.68 The decrease in legislative control of appointments placed the FEC on a somewhat longer leash from members of the legislature, like Hays, who preferred a tightly controlled agency, but — to the extent that the FEC was a response to presidential malfeasance69 — the Buckley-prompted switch to presidential control of nominations was an early and prominent departure from the agency’s proclaimed goals.
Buckley also marked the beginning of a line of cases that placed constitutional limitations on the ability of the FEC to regulate political speech, or that otherwise made the FEC’s job harder to carry out.70 While Buckley upheld contribution limits, disclosure requirements, and public financing,71 it struck limits on expenditures as violative of the First Amendment.72 In the 1990s, the FEC suffered an additional setback in the Supreme Court in FEC v. NRA Political Victory Fund,73 where the Court dismissed a petition for certiorari filed by the FEC on the grounds that the agency generally lacked independent authority to petition the Supreme Court for review without the Department of Justice’s assent.74 The ruling would hamper the ability of even an active FEC to pursue a boundary-pushing enforcement action that might require Supreme Court approval. The following decade began promisingly, as the Bipartisan Campaign Reform Act of 200275 (BCRA) limited outside contributions, and received a favorable ruling from the Court in McConnell v. FEC.76 In 2007, though, the Court effectively invalidated some of BCRA’s prohibitions on electioneering communications.77 Then, finally, in 2010’s Citizens United v. FEC,78 the Justices ruled in favor of a First Amendment right for corporations to engage in political speech79 and, in doing so, created a highly salient flash point for campaign finance reform advocacy.80
Constitutional constraints are not, of course, issues of agency design, but an agency with a mission that is likely to run up against such constraints needs to be able to adapt its policies in light of adverse court rulings if it is to act successfully within constitutional bounds. For reasons that will be described below,81 the FEC has not been able to do this. The string of adverse rulings thus exacerbated some of the problems caused by underlying design choices.
2. Conflict with Congress. — From the start, the FEC faced congressional backlash when legislators felt threatened by the agency’s action. In the FEC’s first year, Congress vetoed two regulations put forward by the agency — one that would have required reporting legislators’ “constituent service funds” or “slush funds,” and another that would have required that disclosure reports be sent directly to the FEC rather than be processed through congressional leadership.82 In opposing the slush fund rule, one co-sponsor of the 1974 FECA Amendments explained Congress’s sharp reversal on the FEC: “[N]obody understood what was in [the 1974 FECA Amendments]. But at that time we were running like scared rats for some reason.”83 Hays was similarly dismissive of the Commission as he orchestrated the second veto, making aggressive legislative maneuvers to deny the FEC an opportunity to make its case at a hearing.84 A program of random audits met with equal hostility — it was quickly defunded, and then banned altogether.85 In 1981, less than a decade after Watergate, deregulation-minded Senate Republicans mounted a serious, though ultimately unsuccessful effort to eliminate the agency, or at least to seriously tighten the reins on its budget.86
The agency internalized the lessons of these early reprimands, and commissioners learned to be conciliatory toward Congress. Former staff members recalled the FEC giving up its staff of investigators in the late 1970s: “They made the commissioners very nervous,” said one.87 “They did not want investigators accumulating evidence that might harm political allies,” said another.88 Potter was warned in the early 1990s to “remember random audits” when considering agency action.89 He connects the agency’s “reticence toward taking on powerful political players” with the increasing fecklessness of the agency.90
In drafting and amending FECA, Congress made choices that may not have resulted in an agency ideally designed for its mission. These choices, as much as external setbacks, have complicated the agency’s work.
1. Four-Vote Threshold. — Perhaps the most frequently cited reason that the FEC was doomed to failure from the start is the fact that it has an even number of members — typically three from each party.91 This facilitates the Commission’s often-criticized 3–3 deadlocks and creates an institutional bias in favor of inaction. Since a four-member majority is required for the Commission to perform most significant actions,92 a three-member bloc is enough to prevent action.
Across agencies, bipartisan membership requirements do appear to effectively limit Presidents’ ability to bring agencies in line with their ideological and policy preferences.93 But separation from the President does not entail independence from party-focused thinking.94 FECA’s vague instructions on commissioner selection95 do not provide a firm enough standard to prevent the nominations of commissioners “who are both partisan and closely tied to congressional party leaders.”96
Congress’s decision, in the 1976 post-Buckley amendments, to require “the affirmative vote of [four] members” for all rulemaking, enforcement, and even advisory opinions97 has made it much easier for commissioners to end an action than to take one, though internal agency design choices contribute to this bias toward inaction as well.98 Considering the four-vote threshold alongside the bipartisan membership requirement, the opportunity for partisan obstruction becomes obvious — only three members may come from the same political party, but committed partisans would need only three seats to shield their party from FEC action. When a bloc of three commissioners prevents action, a reviewing court will treat those voting against action as the “controlling group” whose reasoning represents that of the agency, even though just as many commissioners reasoned differently.99
Commissioner Lee Goodman has asserted that “[i]n setting up a six-member body, Congress fully contemplated” the possibility of tie votes, and that these are “not a flaw of the agency but rather one of its most prudential features,”100 but the legislative intent behind the choice to have an even number of members is difficult to determine. At least in the recorded legislative history, discussions about membership largely ignored the question of whether to have an even or odd number of voting members, instead focusing on how the structure of nominators could guarantee commissioners’ independence.101 The membership of the Commission was not seen as a major issue in the legislative debate over the amendments.102 The addition of the four-vote threshold in 1976 may also signify that the Congress that created the FEC in 1974 did not seriously consider the problem of tied votes.
Supporting Goodman’s claim, though, is the fact that at the start of 1975, when amending the statutory authority of another six-member independent agency, the International Trade Commission (ITC), Congress explicitly provided that a 3–3 split could, in some situations, be interpreted by the heads of executive agencies as authorizing either outcome.103 The very same Congress that created the FEC was thus attentive, only a few months later, to the fact that 3–3 splits in an independent agency could limit its effectiveness. Congress showed a capacity to think creatively about how to avoid too much inaction in the ITC context. This might suggest Goodman is correct that erring on the side of inaction in the case of deadlocks was a conscious choice from the start. Certainly by 1976 Congress knew that the four-vote requirement would tilt the scale toward inaction and would reduce the FEC’s ability to act.104
The political valence and significance of deadlocks is disputed.105 The lack of clear parameters for analyzing deadlocks has made it difficult to identify objectively the size of the problem.106 But, even assuming the best of intentions on the part of the past decade’s commissioners, it is undoubtedly the case that the design of the agency would hypothetically allow three members devoted to rolling back or stalling the development of campaign finance laws to seriously impede the FEC and to push the boundaries of acceptable campaign finance practice.107
2. Methods of Agency Action. — The FEC has both enforcement and rulemaking authority,108 though the four-vote requirement has complicated the exercise of both powers. For a potential enforcement action to make it to court, the four-vote threshold must be met at no fewer than three stages.109 Requiring an agency to make a conscious decision to proceed multiple times before litigation begins might make sense for an agency that does not have such a high potential for deadlock, but for the FEC, it means near-constant opportunities for a proceeding to be shut down.110 These procedures “make it difficult — if not impossible — for the Commission to resolve a complaint in the same election cycle in which it is brought.”111 Before even reaching the third vote, though, the agency must pursue a conciliation agreement through “informal methods.”112 This might help avoid costly litigation, but, viewed less generously, it is a congressionally mandated opportunity for additional delay113 and for the subjects of investigations to talk their way out of enforcement actions before the charges against them become public.114
Rulemaking, and the litigation that typically follows it, is a slow process for most agencies,115 and the FEC is no exception. A rulemaking that began in response to a 2007 Supreme Court decision led to litigation that did not conclude until late 2016.116 The Commission has been equally lethargic in its response to the higher-profile Citizens United decision, despite the Court’s suggestion that disclosure rules would be an important check on political spending going forward.117
Although complaints by private citizens initiate many FEC proceedings,118 the authority to adjudicate claims brought by private citizens is conspicuously absent from the FEC’s powers. Of the traditional methods of agency policymaking, formal adjudication of this sort would provide the least opportunity for political interference, thanks to the “detailed and precise rules” that govern proceedings, and the statutory limits on third-party contacts with agency officials.119 Cases brought by citizens would have to be disposed of one way or the other, and could not simply be closed without any action.120 By focusing on individuals, adjudication may also facilitate low-profile policymaking that avoids political attention.121
These structural weaknesses hinder the FEC’s ability to rise to the unique challenges of regulating the electoral process. Other independent agencies control important segments of the economy through rulemaking, but elections pose unique challenges as a result of their cyclical nature and importance. Federal courts have recognized this in their jurisprudence and make exceptions to typical justiciability doctrine to facilitate the review of election law claims.122 Speed and flexibility — both of which the FEC lacks — are equally crucial to effective regulation of campaign finance as they are to effective adjudication of election-related disputes.
3. Budgetary Control. — The FEC’s budgetary authority is less fundamentally insurmountable as a design defect, but is no less indicative of Congress’s intention to keep the agency on a short leash. In the executive branch, the nexus of budgetary control is in the Office of Management and Budget (OMB). For an independent agency, an exception from the typical process of centralized budget review conducted by OMB is typically seen as a means of reducing presidential control and, consequently, of increasing agency independence.123
The FEC has such an exception — its statute requires that it submit budget requests to Congress at the same time it submits them to OMB.124 This limits, somewhat, the President’s control by guaranteeing that Congress sees the agency’s assessment of its budgetary needs before that information is filtered through an administration that may have different priorities.125 Considering, though, that the FEC’s budget will be spent largely on the regulation of Congress itself, it’s reasonable to wonder whether congressional involvement in the budgeting process truly furthers independence. Here, Congress might be less focused on detachedly evaluating agency needs and more concerned with guarding against any steps by the FEC toward serious enforcement. Past moves by Congress to limit FEC spending in the face of aggressive action126 are perhaps the best evidence that the legislature may not be motivated by a desire to help the FEC avoid presidential control.
III. Elimination?
The FEC’s flaws alone do not prove that it should be eliminated. Certainly many parts of the government could be better designed. Ideally, no matter how flawed the FEC’s structure and procedures may have been from the start, a thorough set of reforms could reshape it along lines that others have suggested into the sort of energetic agency that was needed in the aftermath of Watergate. But the choice between today’s FEC and such an ideal FEC is not realistically before us. The real choice is between today’s FEC and no FEC at all. If a better FEC is not possible, advocates of campaign finance regulation ought to recognize that they are better off without one.
The reality of the FEC never lived up to rhetoric surrounding campaign finance reform. In the 1970s, President Nixon promised change when he signed FECA;127 the Watergate commission recommended serious reforms;128 President Ford suggested that the 1974 amendments represented a historic shift.129 Reformers have claimed that the FEC was “designed to be the people’s advocate in our elections,”130 or that features like the bipartisan membership requirement were the result of Congress’s desire that the FEC “enforce the law fairly.”131 The FEC has not matched these ambitions. Rather, it has played the role intended for it by the Congresses of the 1970s, as reflected in the frank statements of representatives like Wayne Hays who never wanted an FEC as strong as reformers might have hoped.
The agency was designed under the interest representation model,132 yielding an agency fundamentally unsuited to the task it was assigned. Even a well-designed body would have a difficult time policing federal elections under the fear that Congress might reject its recommendations or limit its jurisdiction. But Congress designed the FEC under a framework that “conceived of agency rulemaking as an essentially political process”133 and then delegated to it the task of deciding how and when it would regulate that political process. In doing so, it failed to separate the regulators from politics. From the perspective of the FEC’s designers, the long-recognized impediments to FEC action — an unwillingness to meaningfully challenge elected representatives and an inability to adapt quickly to a changing campaign landscape — were always intended as core features of the agency.
The observation that the FEC is flawed and dominated by Congress is not new. A 1979 interview with a former commissioner began: “From the start, the Federal Election Commission has been criticized for being a ‘captive province’ of the Congress[.] Is it?”134 In 1988, Mutch saw the FEC as a captured agency, one that had “acquiesced in the widening of loopholes that [were] undermining the integrity of [the] law . . . prevent[ing] scandal less by eliminating the practices which give rise to it than by defining it away.”135 In the 1990s, many of the same reforms that are popular today were suggested: a stronger chair, an odd number of members, budgetary protections, and automatic fines, to name only a few.136 Ideas that have been suggested in recent years were thus recognizable and even suggested at a time when “[i]deological conflict [was] rare” among commissioners,137 and partisanship throughout government was significantly lower.138
Good ideas are not enough to get things done, and with rancor on the FEC and increased partisanship throughout government, FEC reform is perhaps less realistic than ever. The FEC’s failure to track popular opinion is not justified by its status as an independent agency.139 Its problems and potential solutions have been available for years, and there has been a public consensus in favor of limiting the role of money in politics for just as long.140 When an agency has failed for forty years to accomplish the widely supported goals that were set for it at its creation, it might be time to conclude that that agency is too insulated to be capable of changing from within or worth changing from without.141
If reform is impossible, it is worth considering whether keeping the FEC in place might do more harm than good. The FEC’s presence in the regulatory landscape distorts democratic accountability. Whenever Congress delegates rulemaking power to an administrative agency, members may benefit from the reduced accountability that comes from avoiding tough decisionmaking.142 This standard problem of administrative law is exacerbated by the FEC’s uniquely complex principal-agent relationship with Congress, which further obscures where policies are truly being determined. The diffusion of responsibility allows the FEC to be at once dominated by political actors in Congress and yet insulated from the political pressure of constituents pressing for reform.
Presidential influence is similarly disguised through the independent agency structure. Although the pre-Buckley appointments scheme did not represent a genuine attempt by Congress to insulate decisionmaking from political forces, the case might still be read as standing for the proposition that the Constitution limits how insulated from politics an executive agency can be. So long as the power to regulate campaign finance remains in an executive agency, “independent” or not, it cannot be exercised entirely separately from the President’s control through, at least, the appointments power.143 An ostensibly independent agency with no meaningful independence from either the President or Congress merely encapsulates the gridlock that pervades the federal government — a logical consequence of interest representation design — but does so on a smaller scale by limiting and disguising political accountability.
Relatedly, the FEC’s presence may provide the public with a false sense that campaign finance laws are being appropriately administered. The FEC’s website states that it “was created to promote confidence and participation in the democratic process,”144 but any confidence that it promotes is only palliative, reassuring the public that elections are regulated without truly addressing the underlying problems caused by money in politics. It is dangerously misleading for the federal government to project confidence and regularity where neither exists, as opponents of regulation can argue that tighter controls are not needed while pointing to a weak agency (which they will characterize as effective or even overbearing).145 Eliminating the FEC and its unexercised capacity to promulgate regulations would leave lawmakers with one fewer excuse for their own inaction.146
Even if retaining a nonfunctional FEC simply meant no change for good or ill in the content of campaign finance regulation,147 its mere existence reduces opportunities for meaningful change. To the extent that it does regulate at a minimal, insufficient level, any partial or incremental regulation may obstruct reformers’ goals, as regulatory half measures can become impediments to stronger regulation in the future by increasing the political and organizational costs of subsequent regulatory changes.148 It is easy to see how this might play out in the context of the FEC: Already, some in Congress have proposed replacing the FEC with a new, stronger agency.149 Proposals for a strong agency might find more support if the FEC were eliminated. If, instead of today’s weak agency there were no agency at all, it would be harder for opponents of regulation to defend the status quo.150
Strategically, reform advocates might also consider that opponents of strict campaign finance regulation seem to be doing just fine within the current system. Victories at the Supreme Court and successful nominations of FEC commissioners with antiregulatory views151 have produced positive results for those who — to put it generously — see political corruption as a low regulatory priority. Having seen results under the current system,152 these opponents of strong campaign finance regulation have little reason to fight the existing system. Considering how few victories good-government advocates have to point to under the current regulatory regime, they might begin to consider whether it is worthwhile to continue playing a losing game.
A full picture of a post-FEC landscape is beyond the scope of this Note. For one thing, campaign finance regulation would be shaped to a large extent by what provisions of FECA were retained or eliminated along with the agency. Some limitations might be kept in place even without an agency to enforce them. Regardless, a preliminary survey of what campaign finance without the FEC might look like reveals several potential means of avoiding chaos and disorder.
First, administration at the federal level might be reorganized in a post-FEC world. To start, some of the FEC’s less controversial tasks might be placed in agencies that do not carry the FEC’s reputation for congressional fealty. There is general consensus that the FEC succeeds adequately at the noncontroversial ministerial tasks of facilitating the disclosure required by outdated rules that are already on the books.153 Without the FEC, the disclosure rules we currently have — ineffective, but perhaps better than absolutely nothing — could perhaps be administered by a legislative agency, as they were in early versions of FECA.154
If enforcement must reflect political dynamics in the federal government, a clear connection to the Executive might be an improvement over today’s indirect and subtle domination by the legislature. Placing enforcement authority in an agency, like the Department of Justice, with less ostensible “independence” than the FEC might not lead to abuse of this power, at least in theory.155 Shifts in enforcement priorities between administrations are expected in other areas,156 and it is not clear that sporadic enforcement of the law by only some administrations would be worse than constant laxity. Political considerations should — one hopes — guard against partisan targeting of enforcement actions.157 Looking beyond donation limits and disclosure requirements, “ex post regulation of campaign finance”158 by means of reforms relating to bribery and lobbying might also be taken up as a priority.159
Finally, some methods of diluting the effect of money in politics need not even involve any branch or level of government.160 Media entities might be encouraged to report more thoroughly on sources of campaign spending, and to play a larger role in shaping the advertising that they air,161 or norms surrounding campaign donations or spending might be changed.162 Such norms may indeed be developing, as populist candidates in both parties criticized their rivals’ reliance on moneyed interests in the 2016 presidential election.163 To the extent that regulation and deregulation simply redirect outside financing among channels that are more or less direct and more or less transparent,164 such norms may be the most effective means of curbing their influence.
Conclusion
At least in the near future, advocates of improved disclosure would have little to lose from the elimination of the FEC, considering the current Administration’s penchant for appointing agency heads who appear ideologically opposed to the traditional roles of their agencies,165 and the recent submission of a nominee for the FEC who “has challenged the principle that the public benefits from the disclosure of political donors, arguing that voters could be distracted from the content of political messages if they focus on who is financing ads.”166
The FEC has never been the independent and effective arbiter that advocates of reform were promised in the wake of Watergate. It’s likely that no law could ever have met the standard set by President Ford’s claim that the 1974 FECA Amendments would “remov[e] whatever influence big money and special interests may have on our Federal electoral process,”167 but the outcry over Watergate necessitated a more vigorous response than the FEC has been able to provide. We cannot wait for a similar focusing event to produce outcry sufficient to force FEC reform, and, indeed, such an event might have deleterious consequences for our government that would far outweigh the benefits gained from any reforms it inspired. By eliminating the FEC, we could eliminate the conveniently agreed-upon lie that it is meaningfully regulating campaign finance, hopefully forcing the issue and facilitating real reform.