May 7, 2008 5:32

The F in FEC: Farcical? Fantasy? Phony?

Posted by Michael Scherer | Comments (42) | Permalink | Trackbacks (0) | Email This

For years now, the Federal Election Commission has been, more or less, a joke, dominated by political pressures as much as clear thinking. As a result of political infighting, it does not even have enough commissioners to act on anything right now. In fact, the only action of note that anyone at the FEC has taken in the last several months was a letter written by chairman David Mason back in February raising questions about whether or not the McCain campaign would be able to legally back out of public financing in the primary. (McCain originally sought public matching funds for the primary, which come with spending limits, but then changed his mind, claiming that he had never made use of the federal money.)

In his letter, Mason did not say that McCain had broken any rules. He just raised concerns, and said that the full commission would have to consider McCain’s request to back out of the program, once there was a full commission to consider the request.

So how was Mason rewarded? He basically got fired by the White House yesterday, or as they say would say in Washington speak, “his reappointment confirmation request was withdrawn.”

Here is how Fred Wertheimer, a campaign finance reformer and historical McCain ally, responded to the news here:

The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain’s request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan.

Rick Hasen, a respected election law professor at Loyola, agrees. The Campaign Legal Center also objects to the removal of Mason.

Bob Bauer, an election lawyer who advises Barack Obama, chimed in on his blog. (Since when did lawyers all get their own blogs?):

By dropping Mason, the Republicans improved their defense of McCain. Mason, the critic, is one vote that Republicans will no longer have to worry about. And however he would have voted in the end--and Mason might well have eventually found in favor of McCain--his continued involvement in the debate would have been awkward for the Republican side. Some will conclude also that Mason's sudden disappearance from the stage is a message about the limits of regulatory and intellectual independence.

There is some reason to doubt that the actual cause and effect is quite so direct. Mason rubbed some other Republicans wrong in the past through by opposing restrictions on so-called 527 groups. But there is little doubt that this controversy at this time looks bad for McCain, who has long spoken out in favor of a more muscular and less political FEC. And the McCain campaign is doing what it can to back away from the issue. “These are Presidential appointments, not McCain appointments,” said Brian Rogers, a spokesman for the McCain campaign. “We obviously did not request the White House appoint or not appoint anyone.” Those close to McCain say that the campaign still hopes to have a functional FEC by August, when McCain is likely to seek public funds for the general. (Without a functioning FEC, the McCain campaign would be forced to go to a federal judge to get the matching funds released by the U.S. Treasury.)

The bottom line, however, is bigger than the politics of 2008. The FEC remains a broken enforcement body, far too hobbled by political pressure to be an effective enforcer of the nation’s election laws. And by appearances alone, the removal of Mason sends the wrong message. “What this does is send a clear message that from an enforcement standpoint is a disaster,” Wertheimer told me today. “All he did was raise his head an create the possibility that he might be a little bit independent from the Republican Party line, and he lost his job.”

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Reader Comments (42)

LaSwamp:

Color me unsurprised. They're going to have to fumigate Washington D.C. on Jan 19, just like when they rehab crack houses. Instead of roaches, D.C. has a bad case of prejudiced incompetence.

Posted by LaSwamp | May 7, 2008 6:09 PM

Cliff:

"Since when did lawyers all get their own blogs?"

Since Bob Loblaw's Law Blog. (Arrested Development, anyone?)

But seriously, good post.

Although:
"And by appearances alone, the removal of Mason sends the wrong message."

It doesn't send a message, because we already got the message: don't f--k with the Administration if you want a job with the government. This is just another incident.

Posted by Cliff | May 7, 2008 6:14 PM

Crust

I'm not sure folks in the media get the magnitude of the underlying issue for McCain here. Under the law Saint McCain himself championed (McCain-Feingold) it is a felony to spend over the limits once you commit to accepting public financing. But McCain did exactly that. He has now spent over the limit. Earlier he pledged his future matching funds as collateral on a loan, which, under the rules, irrevocably commits you to public financing. Not to mention that McCain used his acceptance of public funds to get himself on the ballot in several states.

Short version: If McCain-Feingold were actually enforced, McCain might well be doing jail time. That is the real bottom line here.