This piece originally appeared in Washington Examiner on March 11, 2019.
Sports fans love to hate the referees. Seen through the rose-colored glasses of fandom, the refs always make terrible calls, miss obvious fouls, and purposefully slant outcomes against your team.
So, too, in politics. The federal agency formed to referee the hard-nosed, red team-blue team battle of national politics is the Federal Election Commission. Like refs in sports, nearly everyone thinks they stink at their job.
But for all the agency’s faults, it does have one crucial strength: It is bipartisan. The commission has six commissioners, with no more than three from any one political party. Any action at the commission requires four votes, so whenever the FEC opens an investigation or levies a fine against a campaign, the decision must be supported by at least one Democrat and one Republican.
Does this mean the FEC acts less often than a partisan agency would? Almost certainly. Our campaign finance laws have more than 375,000 words — reasonable people will have reasonably different interpretations of the rules. Commissioners of differing views and backgrounds may divide sharply over gray areas of the law.
Does this mean there is often internal bickering at the FEC? Absolutely. One difficulty with bipartisanship is that it requires working with folks who disagree with you, sometimes strongly, on policy. That will lead to conflict.
But this bipartisanship is crucially important to the legitimacy of the FEC and its mission. In addition to being the agency closest to the battles of politics, the FEC is tasked with regulating a core constitutional right, the right to free speech in campaigns. It is imperative that an agency tasked with such an important role be above partisan reproach.
Bipartisanship on the commission achieves this. The FEC has not seen partisan scandals like the IRS and other federal agencies. Democrats do not claim that Trump’s FEC is trying to silencethem, nor did Republicans claim that Obama’s FEC targeted their campaigns for fines and restrictions. In fact, most FEC enforcement occurs without any public awareness whatsoever — it is mundane and uncontroversial, as it should be.
Unfortunately, the first bill proposed in the 2019 Congress will destroy the FEC’s bipartisanship.
Deep in H.R. 1 (page 456 of 570), the Democrats’ top bill of the session, is a plan to change the FEC from its current six-member structure to a five-member agency. Two Democrats and two Republicans would be joined by a new “independent” commissioner, meaning the tie-breaking vote on any regulation would always effectively be cast by whichever president appoints the “independent.”
This is the political equivalent of “fixing” sports refereeing by allowing the home team to hire an extra ref to make the final decision on every call.
Supporters of the move argue that the president’s nominee must be “independent.” But the FEC plays in the rough-and-tumble world of partisan politics. Let’s be real: Any president is going to pick the nominee he wants, and, in true Washington fashion, find a way to claim they are independent. This “independent” is likely to put their finger on the scale in favor of the appointing president and their party.
Even if a president found, and selected, an honest broker to “call balls and strikes,” the risk of implicit bias is enormous. Regardless of who was selected, the appearance of partisanship would still exist, and it would taint the FEC’s every decision.
This would be truly disastrous for democratic integrity.
Imagine if Democrats were prevented from running campaign ads or fined hundreds of thousands of dollars by Trump’s new FEC czar. They would complain that they were hounded and silenced to the benefit of their Republican opponents. Even if their accusation had no basis, the appearance of Republicans regulating Democrats out of competitive elections, or vice versa, would do untold damage to the legitimacy of our elections.
Referees are not without faults. They can miss easy calls, be swayed by home crowds, and get awed by star power. The FEC, over its 40-year history, is likely guilty of all three. But despite its flaws, the FEC tries to enforce the law, not the party mantra. It would be a shame to lose that.