Wilfred Codrington — A Bipartisan Delusion: Unclogging the Pipe Dreams of an Independent FEC

The following is a guest post by Wilfred Codrington, an attorney at the Campaign Legal Center in Washington D.C. Wilfred is a graduate of Stanford Law School, Brown University, and has an MPA from the University of Pennsylvania.

The biggest fairy tale told on Capitol Hill? “The American people want a bipartisan _______” (solution, budget, commission–you fill in the blank). Any way you complete the phrase, it is uncertain that they do. In fact, I would posit that the only people who want a bipartisan anything are lawmakers in the minority party (which is really to say that the phrase is nothing more than political messaging from a frustrated and banished caucus). I would go further to wager that the American people would prioritize other values over bipartisanship, namely independence and action.

Look at the Federal Election Commission, for instance, the board charged with enforcing the Federal Election Campaign Act (i.e. federal election laws). Bipartisan? Certainly. Federal election law clearly specifies that no more than three of the six commissioners can come from a single party. Independent? Sorta. The FEC is independent in the sense that its members can exercise their own judgment without the fear of being sacked. While the President appoints commissioners (and the Senate confirms them), they can only be removed for cause. But this narrow definition of independence neglects (at least) two elements of a true conception of independence: structural independence and political independence.

Structural independence takes into account the functions of the commission. It essentially asks: how separate is the commission from, well, itself? As a regulatory agency, the FEC wears three hats–(sub)legislator, (sub)executive, and (sub)arbiter. In its first role, the body adopts regulations, i.e. actual laws, that make sense of the vague statutes enacted at the Congressional level. In its other roles, the commission enforces and interprets those very same regulations. This model is tantamount to having a single entity serve as the Congress, the President, and the Court–with limited subject matter jurisdiction, of course. Can you imagine such a Leviathan? In no other instance would the American people want to conflate these roles and, in fact, it was one of our biggest gripes about the British government during the revolutionary era. This is the very reason why the Constitution entails checks and balances among the co-ordinate branches of government.

Political independence, on the other hand, looks at the actual ability of members to make final, autonomous decisions. This includes the freedom to act without fear of repercussion. As noted earlier, the Supreme Court has ensured a certain level of political independence by constraining the President from dismissing members without cause. But while commissioners are immune from the whims of an irate executive, they, unlike federal judges, are not given lifetime tenure. Given their six years terms of service, true independent thinking can raise the fear of being politically ostracized, and has the potential to leave future employment in peril. Washington is a small town with an elephant’s memory: if you want a political future post service on the commission, you would be wise to not stray too far from the party’s ideological platform. Such being the case, when the stakes are high (or even not that high), you can count on a 3-3 partisan split at the FEC.

Which leads to the next value: action. The American people hate stagnation, and love progress.

They hate lawlessness and love fair play. They hate talk, and love do. So when they want an agency (to the extent that they do want an agency), they want an agency with teeth–not some idle commission. Yes, we want the commission to undertake each matter with the utmost deliberation. And sure, by removing the commission’s bipartisan nature there is always the risk that it will act wrongheadedly. But Congress ostensibly undertakes a substantial amount of deliberation (have you ever been to a hearing?). And there are protections against the most egregious errors, including judicial scrutiny and, if extremely bad, overriding legislation. And of course there is always the next election–a referendum on the appointing party. What is the value of an agency comprised of bipartisan membership if it simply results in non-enforcement?

How do we achieve greater independence and more action? Reform the FEC by splitting its authority. Perhaps establish two boards–the Federal Election Regulatory Commission and the Federal Election Enforcement Commission–empowering one with drafting and adopting regulations, and the other with enforcing them and adjudicating disputes. Or maintain the existing structure but institute rotating panels comprised of three commissioners to handle the several responsibilities. These changes need not stoke the fear of enlarging government; they can be accomplished by maintaining the same number of employees and using the existing facilities. Any way we proceed, the key is to screen those who enact the laws from those who administer them, while also removing barriers that currently bind the commission from undertaking these essential tasks.

So we have a choice: we can reform or we can stagnate. One is a road to greater independence and action, and the other, a path to nowhere for the sake of bipartisanship. But understand that indecision is a decision–just ask the commissioners of the FEC.

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