The New York Times: Replace the FEC with A More Partisan Agency

Last Friday, The New York Times Editorial Board published a piece lambasting the “feckless” Federal Election Commission for “fail[ing] to police this rise of ‘dark money.’” Advancing the oft-repeated (and false) narrative among opponents of free political speech that the FEC is a “worse than dysfunctional” agency, the editorial concludes that the entire regulatory body should be scrapped and replaced by one that awards more control over regulation of political speech to the White House.

The editorial falls short both in its premises and its proposed solution. First, the notion that the FEC has “shamefully ducked its responsibilities” by not cracking down on social welfare organizations is out of line with its expectations under existing federal law. The tax code currently allows 501(c) organizations to participate in issue advocacy to varying degrees, as a minor portion of such groups’ overall activities, without having to publicly report the private information of their supporters to the government.

Critics refer to such spending as “dark money,” but their concerns often misrepresent reality, given its small share of overall federal political spending (less than 5% in 2014 and 2012) and the fact that the term is often misused – conflated falsely and in sinister terms with spending by corporations and foreign citizens, neither of which are allowed to contribute directly to candidates. But the Times, in its zeal to crack down on nonprofit advocacy and obsession with disclosing the identities of donors to such groups, seems to expect the FEC to push the boundaries of written law and legal jurisprudence in hopes of chilling the free speech of social welfare organizations.

The Times” suggested solution is essentially to give more regulatory power to the president:

Reform legislation proposed by Senator Tom Udall, Democrat of New Mexico, and Representative David Price, Democrat of North Carolina, would create a commission with five, not six, members appointed by the president. The fifth would be a genuinely nonpartisan election law expert, chosen from a list selected by retired judges and other legal specialists. If members from the two major parties split 2-against-2, the fifth member could settle the issue.

The rationale behind this, according to pro-regulation activists, is that the FEC’s deadlocked votes are a result of partisanship. Such supposed partisanship, they believe, prevents the agency from enforcing any campaign finance laws at all, and therefore necessitates the imposition of an odd number of members to break tie votes.

Such a brazen change ignores the original purpose of the FEC’s structure. The agency was conceived as an even-numbered, bipartisan body so that decisions would require some degree of consensus beyond a single partisan vote. In this way, no single president or party could use the agency for explicitly partisan purposes. This was an especially poignant concern after the Watergate scandal, when the FEC was first created. Lest we forget, President Nixon attempted to use the Department of Justice to pursue criminal campaign finance charges against the President’s critics – including The New York Times. To add a tiebreaking vote obviously removes this safeguard and could lead to future such malfeasance.

It is of no comfort that this fifth member would supposedly be a “genuinely” nonpartisan election law expert. In practice, this could encompass heavily ideological and biased figures from academia and law. A president may install them to specifically advance his or her preferred agenda on campaign finance issues rather than to simply enforce the law. They would only be considered “nonpartisan” insofar as the president has deemed them to be so. Examples of other ostensibly “nonpartisan” government agencies that have shown themselves to be otherwise in history include the IRS, the Wisconsin Government Accountability Board, the Montana Commissioner of Political Practices, and the Alabama Office of the Attorney General.

The proposed changes go far beyond merely tweaking the FEC’s current structure, going so far as to eliminate the agency entirely. This effort seems wholly unnecessary, except for the fact that the 41-year-old structure is currently an inconvenience to pro-regulation activists. Commissioner Ann Ravel, a prominent critic of political speech within the FEC itself, has herself come out in favor of eliminating the agency. Even within the pattern of her active undermining of the organization’s legitimacy, her statements broke new ground by publicly requesting the dissolution of her own job, as well as those of her five Commissioner counterparts.

Finally, the Times concludes that such a proposal to do away with the Commission has “no immediate chance in a Congress obsessed with campaign fund-raising.” However, the editorial preaches that “voters should be demanding it, if Big Money in politics is ever to be reined in.” A few things clearly do not occur to the Times Editorial Board here:

  1. Disclosing the identities of donors to advocacy groups has nothing to do with campaign fundraising. Nonprofits are prohibited by law from contributing directly to candidates.
  2. Voters, despite what they “should be” doing, are decidedly not demanding increased regulations on campaign finance and the political speech rights of nonprofit groups and citizens generally.
  3. It is not guaranteed that voters would even want increased nonprofit disclosure if the details of such a policy were explained to them. Given that ordinary citizens would themselves bear the risks of harassment by having their personal information publicized due to their decision to give to nonprofits, this may be a tougher sell than the Times Editorial Board believes.

Ultimately, it’s unsurprising that The New York Times continues to beat the drum for ever-more disclosure and regulation of political free speech. However, the Center for Competitive Politics will continue to point out the risks of politicizing the campaign finance system and violating donor privacy. Advocates for transparency should focus their efforts on lawmakers and government officials, while allowing citizens to maintain what privacy they have left.

The Center for Competitive Politics is now the Institute for Free Speech.