When “Reform” = Bias

July 17, 2006   •  By Brad Smith   •    •  
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H.R. 5676, introduced (of course) by Representatives Shays and Meehan, and its Senate companion, S. 3560, predictably introduced by Senators McCain and Feingold, is the model of how the self-annointed “reform” organizations and members believe campaign finance law should be enforced.  For many years, of course, these groups and individuals have complained that the only reason – or at least a major reason – that their reform legislation never seems to accomplish anything is the lack of “robust” enforcement from the bipartisan Federal Election Commission.  Under the current set-up, the Commission has 6 members, 3 from each major party; and 4 votes are required for the Agency to take action.  The Regulatory enthusiasts claim that this is a “recipe for gridlock,” although in fact only 2-3% of substantive votes at the FEC end up 3-3.

The proposed legislation would abolish the Commission and create a campaign finance Czar in its place.  Of course, the bill doesn’t call him a Czar, but rather Chairman of a 3 person “Administration.”  Some years ago, the regulatory groups made a similar proposal, but it provided for a single Administrator.  This caught a lot of flack as the idea of a one-man “Election Czar” was not popular.  So they have come back with a proposal for a 3 man commission.  But in fact the Chairman holds all the power – the other two members are just window dressing.  For example, the Chairman alone hires and fires the new Agency’s Staff Director (he must “consult” with the other members, but the decision is 100% his and his alone).  The Chairman also hires the General Counsel, although for this at least one of the other two members has to consent (but these two, even if in agreement, cannot appoint a general counsel of anyone else without the Chairman’s consent).   The Chairman has the power to approve or disapprove any subordinate hires that the Staff Director or General Counsel might make.   The Chairman has the unilateral power to appoint and remove Administrative Law Judges at the Agency, to issue and enforce subpoenas, to compel testimony and the production of evidence, and to make budget requests of Congress independent of the normal federal budget process, and to issue regulations free from the normal process of review.  The Chairman is appointed for 10 years, the window-dressing members for merely 6.

One of the more interesting elements of the legislation is that it provides that if a person files a complaint with the Agency, they can be reimbursed for their costs by the Agency.  However, if the complaint is dismissed as baseless, there is no similar provision for the respondents – they are just out of money.  The obvious goal is to encourage the filing of more complaints.

There are many, many things to criticize about this proposal, not the least of which are the incorrect assumptions and analyses on which it is based, and the abandonment of a bipartisan enforcement agency for one in which the president’s partisan choice will be dominant.  But most interesting, I think, is one provision limiting who can serve on the Administration.  It precludes from service any person who has represented an elected official, a  political party, a candidate or an officer of a political party in the four years prior to nomination.

Imagine such a rule applied to the selection of judges: No person who has represented a defendant in a criminal or civil proceeding in the last four years may be nominated to the Bench!

Would anyone view that as a respectable mechanism for selecting judges with the power to assess penalties against citizens?  And so we get a revealing look into the mindset of the self-annointed “reform” community: when it comes to enforcement, effective Reform = Prosecutorial Bias.

Brad Smith

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