WASHINGTON, May 7 (UPI) -- Although Congress has passed and the president has signed a new law governing the nation's campaign finance system, a Federal Election Commission member said Tuesday that the law is difficult for even the commission to understand -- and may ultimately stymie grassroots political activity.
In an interview with United Press International, Federal Election Commissioner Brad Smith said commission members are meeting to draft the regulations necessary to the new law's implementation, but the complexity has proved vexatious.
"We're going through the regulatory process right now, meeting in committee and going over and over through the statute. Sometimes the staff might have drafted something one way, and we'll be sitting there at the table and someone will say, 'I think we've got this exactly backwards -- this creates an exception, not a limit,'" the 44-year-old Smith, one of three Republicans on the bipartisan six-member commission, said. "It is an incredibly complex statute."
While Smith, a Clinton appointee, hesitated to discuss the new provisions in detail "without a copy of the statute in front of me," he did say that, in general, it breaks new ground for the commission. Prior to the enactment of the new law, the Federal Elections Commission had a rather narrow area of authority over the conduct of elections and political activities.
That authority, established in 1974's Federal Election Campaign Act, has been narrowed in the intervening years as the result of administrative action and judicial rulings. In the most famous of these, Buckley v. Valeo, petitioners successfully challenged parts of the law while the U.S. Supreme Court upheld rules governing disclosure and limits on contributions from individuals to political campaigns for the purpose of express advocacy.
According to Smith, the new federal law requires the FEC to develop a new regime for reporting campaign contributions and spending well beyond the current system. This, he suggests, is fraught with difficulty because "it is going to be tough to know exactly if people are violating certain things."
Under the new law, there are certain groups Smith says "will not have to register with the commission as political committees, but may have to report certain expenditures to us. The problem is, if they don't have to register with us as political committees. ... We have no real way to check whether they're reporting what, in fact, they're suppose to be reporting."
The act also establishes several new categories of political spending and activity beyond the commonly heard but misunderstood hard and soft monies.
Under the old rules, hard money was contributions regulated by the FEC -- $1,000 per federal candidate per primary and general election up to a maximum of $25,000 in a two-year election cycle. The generally misunderstood "soft money" is all spending other than hard money, which the new law seeks to more strictly regulate.
The new act references, in part, federal election activities, electioneering communications, and generic campaigns activities -- all of which the FEC commissioners are currently sorting through as the regulations are being drafted. As Smith points out, many of the terms are defined in the new act; however, the commission still must determine how those terms are to be applied to election law, requiring them to find answers to pressing questions about meaning and implementation.
As one example, Smith cited voter identification, which is mentioned in the act, as being more complex than it seems.
"One of the things that is defined (in the act) as 'federal election activity' is 'voter identification.' Well, what does 'voter identification' mean and does it mean something different then 'Get Out the Vote' which is included in the list. In many states, when you go to register to vote, you have to register as a Republican or a Democrat."
"Arguably, that's 'voter identification' and states aren't exempt from the act -- states can be fined under the act for making contributions -- so arguably any state that does that is in someway violating the act at this point," Smith said, though he acknowledged the commission is unlikely to write a definition that will interpret the term in a way that calls such state activity a violation. But it is, he says, illustrative of the kinds of issues the commission is facing.
The end result, he fears, is an increasingly complex system of reporting and record keeping that will vex average citizens, ultimately driving down participation in the process.
Smith says that he has consistently complained that campaign law complexity "makes it very tough for the true grassroots people to operate."
The commission, which has not had its power to regulate state voting equipment and procedures expanded by the new law, will still have to grapple with questions of how authority is divided between the states and the federal government.
"The state provisions raise a number of federalism questions in that it's going to limit what state parties can spend on elections that effect state officials," he said.
For Smith, one problem arising on federalism grounds is that "in the vast majority of states, whenever there is a state election there are also federal candidates on the ballot. Things that state parties do to support their state candidates ipso facto also affect the federal races."
"If you get somebody to go vote for a state candidate, he's likely to vote for a federal candidate as well. If you register voters to vote in a state race, they're registered to vote in a federal race. This has long been an issue, and I believe it is going to be an issue in the court case as well," Smith said.
