The foxes guarding democracy's henhouse

Remember the McCain-Feingold campaign reform bill? The ideologues who control the Federal Election Commission are gutting it.

By Robert Capps

Sep 27, 2002 | It's no secret that Bradley Smith opposes almost any effort by the federal government to regulate campaign finances. He's written, spoken and testified before Congress on his belief that campaign finance laws unconstitutionally restrict speech, help incumbents while hurting challengers and generally cause more problems than they solve. He has even written a book titled "Unfree Speech: The Folly of Campaign Reform."

After arguing for years that election reform laws should be repealed, the former law professor today finds himself in a curious position: He is a member of the Federal Election Commission, charged with enforcing the U.S. campaign finance laws that he has long opposed. And with a majority of his colleagues on the six-member panel, he appears to be working to systematically undermine the McCain-Feingold campaign reform law, which was supposed to impose dramatic new limits on the power of "soft money" in American campaigns.

Smith and the other commissioners in his camp say they are simply writing the rules required to make the law's definitions precise, resistant to court challenges and discouraging to frivolous or politically motivated attacks. But after a series of controversial votes last June -- and with a new rule-making session just beginning at commission headquarters in Washington -- critics say the commissioners have adopted a set of regulations with such narrow definitions and significant exemptions that the soft money floodgate will remain open, or at the very least, easy to circumvent.

Sen. John McCain and the other sponsors have blasted the FEC's interpretation of the law, charging that the commissioners have ignored the will of Congress and exceeded their authority. "Their conduct has been the most disgraceful I've seen in 20 years in Congress," McCain, an Arizona Republican, told Salon. "They're clearly violating both the intent and the letter of the law. They say they are writing their regulations on the basis of constitutionality. That's not their job. That's the job of the courts."

Sen. Russell Feingold, D-Wis., expressed similar frustration in a statement to Salon. "With its eyes wide open and in the face of strong criticism from both the sponsors of the law and groups that support it, the FEC has opened loopholes in the new law before it even takes effect," he complained. "This is not a legitimate exercise of regulatory authority and something must be done about it."

For years, critics across the political spectrum have warned with increasing urgency that hundreds of millions of dollars in unregulated "soft money" was corrupting the political process, allowing free-spending special interests to buy access and influence with lawmakers that other people or groups could never match. McCain-Feingold was intended to help purify the process by clamping down on the riches that get funneled to political parties and political action committees every election cycle.

While McCain and his allies may be dismayed by the commission's actions, they shouldn't be surprised. According to a Salon investigation, the commission has been criticized almost since its inception in 1974 as a poorly camouflaged tool of the two major political parties. Critics derisively call it the Failure to Enforce Commission, or, more simply, FECkless. In a two-year study released this May, a task force of public policy specialists, former commission officials and legal experts found the agency so flawed that they recommended it be scrapped and replaced with something less political and, presumably, more functional.

Now, to the chagrin of critics, this little-known but high-powered agency is slamming headlong into the most sweeping campaign finance law in almost 30 years. This week, the commission turned its attention to revising rules for political advertising -- a process which, critics say, will likely mean finding a way to continue the abuses that plague campaign advertising in federal elections.

"If there's one thing the FEC has done over its lifetime, it's protect the political parties," says Paul Sanford, a former commission attorney and current head of FECWatch, an oversight group run by the nonpartisan Center For Responsive Politics, a nonprofit based in Washington.

To be sure, groups ranging from the Republican National Committee, the National Rifle Association and antiabortion groups to the AFL-CIO and the American Civil Liberties Union have filed suit over various provisions of the bill. And the commission itself defies easy partisan breakdown -- two veteran commissioners appointed by President Reagan, the conservative Republican icon, are the strongest reform advocates on the panel.

But the majority of FEC commissioners today are political ideologues or party insiders who often appear more intent on catering to the parties' interests -- and the interests of big money -- than in protecting the public's interest in having fair and honest elections. At least four of the commissioners -- Chairman David Mason, Vice Chairman Karl Sandstrom, Smith, and Michael Toner -- have expressed opposition to current campaign finance law. And three of them -- Mason, Smith and Toner -- openly opposed the bill as it moved through Congress. Only the Reagan holdovers, Danny McDonald and Scott Thomas, seem to support the laws they are responsible for enforcing.

But if the will of the membership seems to contradict the spirit of federal campaign laws, critics say, that may be by design. Fred Wertheimer, executive director of the watchdog group Democracy 21, says the problem is simple: The commission was supposed to be a paper tiger, and it is. The members, who are paid a set income of $130,000 a year, are chosen by the same politicians they are supposed to regulate. Commissioners like Smith are selected for their ability to soften the campaign laws and preserve the parties' power, Wertheimer says, not for their ability to aggressively enforce the law.

"You don't have people with enforcement backgrounds being appointed," Wertheimer says. "You don't have people who come from state ethics agencies or other ethics backgrounds appointed to this commission. You have people who are sent there with an implicit if not explicit mandate to protect the members of Congress and the political parties who sent them there."

Next Page: How soft money became "a real players' game"

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