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Commentary: A FEC-kless idea

By PETER ROFF, UPI National Political Analyst   |   May 31, 2002 at 12:49 PM
WASHINGTON, May 30 (UPI) -- It is an odd thing to watch the continued evolution of the debate of the nation's campaign finance system.

Not satisfied with the passage of the McCain-Feingold-Shays-Meehan act, the reformers are moving ahead with calls for a total overhaul of the Federal Election Commission while it is in the midst of developing the rules under which the new law will be implemented. Call it striking again before the body is cold.

This should also be a subtle hint to all concerned that the reformers, as they have anointed themselves, understand the new law does not get them to where they want to be.

Even usually sober-minded political writers like The Washington Post's David Broder have taken the bait, arguing that the FEC is "a toothless tiger," incapable by design of fulfilling its mission.

In his May 28 column, Broder argues that the politicians who created the FEC in the mid-70s "did not want a tough cop policing its campaigns." This assertion is suspect. The Congress that created the existing system was full of serious, reform-minded legislators. They were passionately committed to changing the way politics worked, even though it is still an open question to what end.

In any case, the FEC was by design created to be purposeful in its actions. The commission is composed of six members -- three named by the Democrats, three by the Republicans. The president appoints all of them and they may join the commission only after confirmation by the Senate.

This is a deliberate construct, fashioned to prevent one party from bringing down investigative tyranny on its political opponents should its representatives gain control. As an additional safeguard, a majority of at least four votes is required for the commission to move ahead -- meaning something approaching bipartisan consensus is required before the FEC can act.

FEC critics, including Broder, seem to be more concerned with those occasions where a three-to-three deadlock have frustrated efforts to move ahead on what they would call important cases rather than the historical problem of FEC overreaching.

Many of the cases that have embarrassed the FEC in recent years have had little to do with the law as it currently exists. Those occasions upon which the courts have turned it back has been when it attempted to exceed the authority granted it by Congress and when it attempted to trample on the First Amendment safeguards that protect free speech.

Should the commission chose to move against a campaign that fails to report its donors in a timely manner, there would likely be little internal debate or external conflict. This is clearly its responsibility under the law as it currently is written.

When the FEC has attempted, through regulation or court action, to limit the ability of citizens and groups outside the campaign and partisan structure to express opinions -- to engage in the very essence of political activity -- the courts have rightly smacked it down.

Unfortunately for the best interests of our democratic system, the leaders of the reform movement are putting forward ideas that would suppress rather than celebrate political and intellectual freedom.

A group of them led by Fred Wertheimer, formerly of Common Cause, want to abolish the FEC and replace it with an all-powerful czar who will enforce the laws governing campaigns. There have been dumber ideas put out forward on this the issue, but not many.

The all-powerful czar envisioned by the likes of Wertheimer would run roughshod over the rights of all Americans, Republican, Democrats and independents alike. Anyone who doubts needs to take stock of the activities of the last FEC general counsel, Lawrence Noble. He repeatedly tried to take the commission into areas it had no business being and was many times stopped only by the four-vote requirement.

Broder sensibly rejects the idea of a czar, opining that its business would likely come to resemble the investigations conducted under the expired independent counsel statute. "He would have no accountability to anyone for the way he exercises his vast power," Broder writes.

The very essence of the American republic is the idea that the people are sovereign and that government is accountable to them. To turn the oversight of the democratic process over to one who was completely free of the burden of accountability would not just be irresponsible; it would be criminal.

Broder ends the piece by advocating a "tax" on a fixed percentage of national party receipts, the reduction of the number of commissioners from six to five to allow for a majority and to change the appointment process so that a panel of retired federal judges shall name the commissioners rather than party leaders. These ideas have surprisingly little merit to them, even when taken together.

The stumbling bloc to a more aggressive FEC is not the size of the commission. It is the requirement that a majority of the commission -- at least four votes -- be found before action can be taken. This is, as previously explained, a deliberate safeguard that has not always been sufficient to keep its work confined to what it is permitted to do by statute. There is every reason to believe that a more aggressive commission would be a more reckless commission.

Nor would taxing the parties to fund the commission's work improve things. It is not the size of the budget that creates the problems; it is misguided efforts by the general counsel and the staff of attorneys to expand its role, to grab oversight of all political activity and take for itself the ability to punish those whom it sees as abusers that created whatever resource problems it may be experiencing.

The idea of using retired federal judges to do anything always seems to surface when there is nothing better to suggest. They are not the magic bullet for whatever thorny political problem exists simply because they have the appearance of being serious and even-handed. They are not, as we are frequently told and frequently reminded, above politics or partisanship.

How the reformers can reconcile this idea with what the politicians, some of whom are also reformers, have been saying about federal judicial nominees since Ronald Reagan's presidency is the real mystery.

The ideas that underlie the Federal Election Commission and the regulations that cover the campaign system may be noble ones. In practice, they have been poorly implemented, with clear violations of existing laws -- like the acceptance by parties and presidential campaigns of cash contributions and donations from foreign nationals -- being neglected while radio spots, audio tapes and voter guides have been pursued to the ends of the system.

The future of the political freedom guaranteed by the First Amendment is at stake here, make no mistake about it. The drive toward reform has been highjacked by people whose game plan is to take control of the political process through regulations, lawsuits, fines and prison terms. The proposals moving forward are all about giving elites control of the process and depriving the rest of us of the rights recognized and protected by the founders. Corruption is a fig leaf. Control is the goal.

© 2002 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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