In 1990, Common Cause, the self-described citizens lobby, filed a complaint with the Federal Election Commission alleging that two Republican political committees had exceeded contribution and spending limits in the Senate campaign of Montana Republican Conrad Burns. At the time, Burns was already in the second year of his term.
By then, Burns was in the third year of his second six-year term. He joked later that his case became "like old cheese -- it just soured."
Not every case drags on for eight years, but the Burns saga illustrates what FEC critics say is wrong with the agency. By law, no more than three of the six commissioners can be from the same political party, assuring a 3-3 split between Democrats and Republicans. But it takes four votes to approve any action, an invitation to deadlock in the most controversial cases. When the commission does act, it is almost always long after the election in which an alleged campaign law violation occurred.
And now the commission faces the daunting new task of enforcing the recently enacted campaign finance overhaul -- often called McCain-Feingold -- which will ban unregulated "soft money" contributions to the national parties beginning right after this fall's midterm elections.
But even before the FEC has drafted regulations to implement the new law, the campaign finance battleground has shifted. The new debate is over the FEC itself.
That debate centers on a drive to radically change the way campaign finance laws are enforced. Leading the charge are many of those who championed the new law, among them Sen. John McCain (R-Ariz.), who says "the agency is a failure." It will intensify on Wednesday when Democracy 21, a liberal advocacy group headed by former Common Cause president Fred Wertheimer, is scheduled to release a report advocating the abolition of the six-member commission and its replacement by a single administrator armed with new powers to impose civil fines and cease-and-desist orders much more swiftly than is now possible.
"The FEC is an ineffectual agency," Wertheimer said, "structured by Congress to be slow and ineffective, composed of commissioners whose appointments are tightly controlled by members of Congress and the political parties they regulate, and hobbled by a lack of real enforcement powers and a chronic lack of funds."
FEC Chairman David M. Mason cautions against a rush to dismantle the agency.
"I'm very open about enforcement modes," Mason said in an interview. "There's nothing magic about a six-member agency enforcing the law. There are advantages and disadvantages to collegial agencies versus single administrators. I happen to think, having experienced it firsthand, that this is actually a pretty good balance."
Even the FEC's harshest critics say that much of what is wrong with the agency is not chiefly the fault of the commissioners and their staff but of Congress, which designed the commission to limit its effectiveness. "Congress has always been leery of allowing the FEC to roam freely or to act immediately for fear it would do damage to individual members' careers," said Thomas E. Mann, a senior fellow at the Brookings Institution and a member of Democracy 21.
Trevor Potter, who served on the commission from 1991 to 1995 and was chairman in 1994, said that when Congress created the FEC "it put so many safeguards in that it was ineffective." As a result, he said, "we are dealing with a deadlock that Congress designed, and I don't see how you can have good enforcement of the new law and the old law with that sort of structure."
Critics of the FEC's enforcement record are not just outsiders. They include Commissioner Scott E. Thomas. In a 2000 article in the Administrative Law Review, he described the FEC as "an underfunded agency with its hands tied by awkward procedures and structure."
Thomas said that because of cumbersome enforcement procedures mandated by law "it is virtually impossible for the commission to resolve a complaint during the same election cycle in which it is filed." He said a study commissioned by the agency indicated that only 2.56 percent of commission votes ended in deadlocks, but that "the votes on which the commission has deadlocked sometimes have been important matters" such as whether to appeal crucial court rulings.
According to figures compiled by the FEC, since Jan. 1, 1998, there have been 30 tie votes out of 640 enforcement decisions by the commission, a deadlock rate of 4.7 percent. But some of those 3-3 votes were on high-profile cases, including whether to pursue complaints against the 1996 presidential campaigns of Republican Robert J. Dole and former Democratic president Bill Clinton.
Not all of the tie votes, including in the Dole and Clinton campaign cases, were along straight party lines.
Mason, a Republican, cited those figures in defending the agency's structure and arguing against the single administrator proposal of Wertheimer and others. In dealing with such an inherently "political law," he said, a single administrator could easily become caught in the kind of political whirlwind that engulfed Lawrence Walsh and Kenneth W. Starr during their tenures as independent counsels investigating incumbent administrations.
"The advantage of a multi-member agency is that no one of us gets personally demonized as the person who decided to prosecute a prominent Republican or a prominent Democrat or who turned down a case or whatever," Mason said. "That, I think, gives some insulation to individual commissioners and gives some assurance to people who are concerned with the law that it is being applied in as even-handed a way as can be.
"The structure provides a protection against abuse of the law by one party to go against the other. With a single administrator, if you get the wrong person, what do you do then? Impeach him? Have the president fire him? Whereas, here you have a kind of permanent check."
Mason was publicly critical of the campaign finance legislation during the congressional debate. Another Republican commissioner, Bradley A. Smith, also opposed the measure and is a critic of campaign finance laws in general.
But the commission has vowed to enforce the new law, and Mason urged patience as the task nears. "In the next nine months we've got a rather difficult job to do," he said. "If Common Cause and Senator McCain and the others are going to spend a lot of time attacking the agency and attempting to get the agency abolished or reformed in some fundamental way, that is inevitably going to detract from our efforts to implement and enforce the law."
Potter, a member of the Democracy 21 task force that will propose overhauling the FEC, said there can be a middle ground between the FEC's current structure and "the grand inquisitor of the independent counsel law."
"The structure has diffused responsibility," he said. "It's the headless agency, the directionless agency, that has been the problem. Most of the major problems Congress has attempted to correct in the new law are the result of acts or failures to act by the commission."
