With 3-3 deadlocks common on key issues, often along party lines, the Federal Election Commission (FEC) — made up of three Democrats and three Republicans — has sometimes seemed like it was built for paralysis. 2008 Republican presidential nominee John McCain has called the commission’s design a “fundamental problem.” The FEC is supposed to enforce the nation’s federal campaign finance laws. But even in cases of bipartisan agreement that a campaign or committee has violated those laws, the FEC’s lengthy investigation process means there can be no punishment until after the election is long past. And in 2008, the FEC’s inability to exercise meaningful control of the most expensive presidential election ever ran into an even more serious impediment: lack of a quorum. With the terms of three commissioners expired and one other seat vacant, President George W. Bush and the U.S. Senate’s Democratic majority engaged in a procedural stand-off over the confirmation of new commissioners from December 2007 until late June 2008. As the campaign steamed along and questions and controversies arose, there was literally no one there to field them — leaving the nation’s elections without a referee.

Follow-up:
After a compromise between the Senate Democrats and the Republican administration led to confirmation of a total of five new commissioners on June 24, 2008, the quorum issue was resolved. Efforts by some in Congress to enact broader reform have not made it out of committee in the House or the Senate.

On March 27, 2002, President George W. Bush quietly signed the Bipartisan Campaign Reform Act of 2002, commonly known as “McCain-Feingold” or “Shays-Meehan,” but a major loophole in the legislation effectively replaced one problem with another. The bill banned “soft money” — a type of unlimited contributions from individuals, committees, and corporations to national political parties and candidates — but left in place a weak enforcement system that has resulted in little regulation of contributions to independent committees, including so-called 501(c)(4) and 527 groups. With large donors no longer permitted to donate millions of dollars to the national parties, wealthy activists on both sides began to create external groups that drew more and more of the political contributions — groups such as America Coming Together, the Progress for America Voter Fund, Swift Boat Veterans and POWs for Truth, and the MoveOn.org Voter Fund. The Federal Election Commission’s (FEC) slow, deliberative investigative process appeals to the independent groups, enabling them to have a major impact during the election cycle while risking only after-the-fact legal action. These tax-exempt groups raised large amounts of money from supporters, spent millions of dollars on advertising, and ultimately were fined hundreds of thousands of dollars by the FEC — but not until more than two years after the election, when the groups had largely ceased their activity. Paul S. Ryan of the nonpartisan Campaign Legal Center told the Center that under the current system, he finds it “difficult to envision these groups seeing fines as more than the cost of doing business.” And the proliferation continues. According to the Center for Responsive Politics, national 527s spent and raised roughly $200 million in the 2008 election cycle. The result for the nation: big political campaigns where those with the most money have the loudest megaphones.

Follow-up:
Though FEC complaints, court cases, and congressional reform proposals continue to work their way through the system, there has been little change on this front.

Photo: Senators Russ Feingold and John McCain. Photo credit: Office of Senator Feingold

Established in response to the chaos of the 2000 election, the U.S. Election Assistance Commission (EAC), by many accounts, has been ineffective thus far in smoothing out the nation’s voting problems. The commission, created as part of the 2002 Help America Vote Act (HAVA), is an “independent, bipartisan commission” tasked with “developing guidance to meet HAVA requirements, adopting voluntary voting system guidelines, and serving as a national clearinghouse of information about election administration,” as well as accrediting testing laboratories and certifying voting systems. Former President Ronald Reagan called the right to vote “the crown jewel of American liberties,” but after the controversial 2000 election, Democrats and Republicans agreed major legislation was needed to address serious problems in the election system. The EAC got off to a stumbling start, chronically short of funds – receiving only $1.2 million of $10 million authorized in 2004 – and unable to secure office space for its first two years. Subsequently, the commission came under significant criticism — including multiple reprimands from the Government Accountability Office — for its failure to establish and maintain a clearinghouse of information on how state and local governments implemented guidelines and operated voting systems. The EAC admitted it was “resource constrained” in its ability to ensure voting systems “perform securely and reliably.”

Follow-up:
On November 8, 2007, less than a year before the 2008 election, the EAC finally announced what then-Commission Chairman Donetta Davidson called “an important first step in building a national clearinghouse of voting system reports that have been conducted by states and counties.” That step became the “Voting System Reports Clearinghouse” section on the EAC’s website, which now includes five reported problems. But the Commission only includes those reports voluntarily filed by states and localities, and the information in the clearinghouse only reaches those state and local election officials who actually visit the website. An EAC spokeswoman said that the agency has made “significant progress” since the GAO criticisms. She noted that the EAC’s power is limited by the mandates of the Help America Vote Act and that the GAO recently recommended that Congress expand the Commission’s role in resolving voter system problems. Meanwhile, a 2006 Gallup poll indicated that only 28 percent of Americans were “very confident” that across the country the vote would be accurately cast and counted.