Sunday, Sep 7, 2008
Between now and year's end, the commissioners will preside over a complex process in which the rules of campaign finance reform will be drafted, studied, subjected to public hearings, reviewed, amended and then approved in a public vote. Thus far, only the rules on soft money have been reviewed and approved by the commissioners, but in that process, critics see a grim harbinger of things to come.
Initial drafts by the commission staff provoked only modest debate, and most controversies seemed to be quelled by the last proposed draft. But in the final session, spread over four days in June, the commissioners introduced and approved a set of amendments to the draft regulations that bloodied the law. "Watching the final soft money rule-making was like watching a stock market crash from the trading floor," says Paul Sanford of FECWatch.
The meeting was held in the Federal Election Commission's public hearing room in Washington, a room packed with commissioners, lawyers, staffers and an audience of more than 100. Those who attended watched a lesson in how fine-print changes in the law -- seemingly insignificant -- had the effect of a counterrevolution.
As drafted, the rules blocked federal candidates from raising or directing soft money, prevented national political parties or organizations related to them from doing the same, and generally curbed soft money's influence on federal elections. But scores of amendments were introduced, one at a time, each weakening the law, and many passing by the same 4-2 vote.
When the commissioners tried to settle on what it meant to "solicit" donations, the commissioners' general counsel, Larry Norton, offered a common-sense approach: Solicit means to "request, suggest or recommend" that a donation be made. Sandstrom flatly rejected that language, asserting instead that "solicit" means a candidate must explicitly "ask" for a donation. Norton shot back: "It doesn't seem to me to take a great deal of cleverness to ... persuade a person to make a contribution, without coming out and asking. I think this definition has the potential for great mischief."
The reform opponents mustered four votes to pass the amendment.
In its effort to stop national political parties from using shell organizations to get around the new law, McCain-Feingold states that such organizations, when created or run by the parties, would also be covered under the law. But Toner moved to open a potentially huge loophole: Any organization created before the law took effect Nov. 6 would be exempt, as long as it was no longer controlled by the party after that date.
Again, the reformers were incredulous. "[The FEC] will allow the parties to set up these organizations, and perhaps provide them with some funding, and then after November these groups can operate however they like, and they're not subject to the same soft money restrictions that apply to the parties themselves," Sanford says. "The rules are a recipe for them to do this. It's a big, giant sign in 6-foot letters that says: 'Do this.' And they've painted it on the Capitol dome. If party committees aren't doing this, they need to have their eyes checked."
And Sanford appears to be correct. The Washington Post reported just weeks after the meeting that the national parties were already moving to set up soft money shell organizations for use after November.
Toner counters that it's ridiculous to hold someone accountable under a law for things they do before the law takes effect. "What basically developed was a concern that people would be prosecuted next year for conduct that they're doing now that is legal under current law," Toner says. "If you're going to have a transition period, than what you're doing now, if it's legal under current law, should have no bearing on if it's legal next year."
When the June rule-making session was finished, campaign finance advocates were outraged. "You have so tortured this law, it's beyond silly," Commissioner Thomas, one of the Reagan-era veterans, told his colleagues. McCain and the bill's other sponsors agreed, and they blasted the commission's actions.
"The Federal Election Commission has taken upon itself the task of rewriting the newly passed McCain-Feingold/Shays-Meehan bill," the four said in a joint press release the day after the rules were issued. "This is not a role given to the FEC by Congress, or by the Constitution ... Many of the amendments adopted in the past two days simply ignore the law. They show that a majority of the FEC is willing to flout congressional intent and substitute its own policy preferences. The country deserves better, especially from an unelected body."
Despite such a dressing-down by the congressmen who created the bill, the four commissioners who rewrote it were unapologetic. "They don't understand the regulations that they're criticizing," Smith says of the sponsors. "At times they either don't understand their own bill, or they're trying to get the commission to do things that they didn't think they could put in their bill and get it through Congress."
Thomas disagrees. "I'd be happy to sit down with anybody at any time, and take the provisions of the statute and the legislative history and the comments we got, and show how the approach that my colleagues took doesn't coincide with the language or intent or the legislative history," Thomas says. "In virtually every occasion when that kind of an issue came up, four commissioners took the position that was: 'Let's interpret the law in a way that will allow more of the soft money to come in and continue.'"
McCain and the other sponsors will likely file a resolution in Congress seeking to have the rules overturned. They have also said that they are considering filing a legal action against the commission. But both avenues will be difficult at best. The resolution would need approval in both houses of Congress and would have to be signed by the president. A lawsuit will have to prove that the rules were "arbitrary and capricious," a standard that campaign finance advocates say can be achieved, but only after a long detour through the courts.
And even as McCain and the other sponsors pursue these efforts, the commission is likely to chip away at the law in different areas as it continues in the five other rule-making sessions that are likely to last until the end of the year. So far, the draft rules in areas like advertising appear to be far less controversial than the final soft money rules, but critics are mindful that most of the objectionable changes on soft money rules came at the last minute.
There is one bright light on the horizon for Sanford and other reform proponents: Sandstrom is set to be replaced in October by Ellen Weintraub, a former counsel to the House Ethics Committee and the wife of Feingold's legislative staff director; that change will almost certainly alter the balance of power. Bush approved the nomination only after McCain threatened to vote against Bush's judicial nominees.
Far from solving the commission's problems, however, the change may only result in gridlock. Many critics insist that the only way to really solve the problems of the Federal Election Commission is to disband it. The Democracy 21 task force recommended replacing the commissioners with a single, long-term administrator. That, the authors said, would force the president and Congress to appoint an executive who is more powerful and less partisan.
McCain says he may pursue some type of restructuring of the agency, in hopes that one day the campaign reform law will become what it was intended to be. "It took Russ [Feingold] and I seven years to get this law passed," he says, "and we're not going to quit. It may take another seven years to get it enforced properly, but we'll win over time."
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