“Shutting Down” the FEC

 A front page headline in today’s Washington Post laments the “fact” that, “As primaries begin, the FEC will shut down.”  The inimitable Bob Bauer has chronicled the half-hearted hand ringing of the so-called “reform” community, drawing a typically nasty response from Gerry Hebert of the Campaign Legal Center.

For those unfamiliar with the issue, in a nutshell, a handful of Democratic senators, including Barack Obama, are blocking the nomination of Republican appointee Hans von Spakovsky to a full term.  Republicans have responded by holding up two other pending nominations, those of Democrats Bob Lenhard and Steve Walther.  All three have been serving on recess appointments for two years now, but those recess appointments expire with the end of the year.  Once that happens, the 6 member agency will lack a quorum.Mr. Bauer has thoughtfully outlined reasons why a temporary shutdown may not be the best thing, even for those who, like we here at CCP, don’t share much affinity for the FEC’s mission.

But let’s straighten out what the FEC “shut down” means.First, it does not mean that the agency will “shut down.”  Its nearly 400 staffers continue at work.  While a long term lack of a quorum The FEC could lead to large scale interruption in the FEC’s duties, a short term interruption will have little effect on agency operations.  The Commissioners have authorized investigations into various complaints that have been filed, and the staff can carry those investigations forward, gathering facts and analyzing the law, quite some way.  New complaints will continue to be processed uninterrupted.  Respondents will be designated and the complaints sent to those respondents.  Those named then have, by statute, 15 days to reply, and the FEC has long routinely granted at least one 15 day extension.  Once the response is received, it typically takes the Agency sixty days or more, given its resources, to review the allegations of the complaint and response, analyze the matter under the law, and prepare a recommendation to the Commission.  Audits that are already under way will likewise continue.  Pre-authorized regulatory projects will proceed.  The public education and press arms of the Agency will continue to function.  In short, if the congressional deadlock lasts 3 months or less, it will hardly be noticed at all in the functioning of the Agency.  As others have pointed out, the statute of limitations on most FECA violations is five years.  Any inabililty of the FEC to vote on enforcement matters does not suspend the law.  Any offenses that occur in the interim can and presumably will be investigated and pursued once the Commission is back to strength, as it is presumed will happen.  So no one has a “free pass.” Given the realities of due process, serious legal analysis, and appropriate fact finding – realities that, admittedly, the so-called “reform” community has always been unwilling to accept, their regard for constitutional due process being little higher than their regard for the First Amendment – it is and always will be impossible to resolve most complaints before the election.  So the calculus for a would-be lawbreaker has really not changed.

Which is not to say that an Agency “shut down” will not be noticed at all.  Cases that are almost at the statute of limitations may go unprosecuted, although my guess would be that the FEC staff, well aware for months of the possibility that the Agency could lack a quorum after January 1, has taken the necessary action to bring any such cases to resolution.  More problematic, the Commission will not be available to approve settlement agreements, so that cases will not be finally resolved until after the Commission is back together.  I doubt that a few months delay in final settlement is a major concern for most respondents.  The biggest effect may be on the advisory opinion side, where the FEC will be unable to rule on Advisory Opinion Requests, including that of SpeechNow.org.  The SpeechNow.org request, represented by we here at CCP along with the Institute for Justice, has been widely recognized as one of the most important requests filed with the Commission in years.  But for the vast majority of political activity under way, advisory opinion requests are not necessary, and a few months gap in FEC approval will have minimal consequences. 

So them’s the facts, and one can see that editorial hysteria of the Washington Post (“What if the country held an election and there was no one to make sure that candidates played by the rules”) and others is overstated, at least for any short-term “shut down.”  But this hysteria is misplaced in another way as well, and that is in its fundamental assumption of how elections ought to play out.

As our friend George Will notes in this column, the country managed to do quite fine without “someone” to “make sure candidates played by the rules” from the adoption of the Constitution in 1789 through the elections of 1974.  We don’t disagree with Mr. Bauer that, since the FECA itself is unlikely to be repealed, having a functioning FEC has some advantages over not having a functioning FEC, at least for practicing attorneys trying to advise their clients on this election. 

But in the bigger picture, the lack of a functioning FEC, especially if it plays out over a longer period of time, could be a good thing.  It would demonstrate that in fact the FEC isn’t particularly important to the nation.  People would find that elections go on perfectly well.  It will not result in greater runaway federal spending than we already have.  It will not result in more earmarking.  It will not lead to more congressional scandal.  These are things that go on quite independent of the federal campaign finance laws. 

And if people see that the nation can function perfectly well without a functioning FEC, it might soon decide it can function perfectly well without campaign speech restrictions at all.