The nation’s enforcer of election laws was largely paralyzed during the 2012 election, despite a Supreme Court ruling that left several key money-in-politics issues open to interpretation.
With five of six Federal Election Commission members working on expired terms (one since 2007), President Barack Obama had an opportunity to remake the agency with members more inclined to enforce campaign finance rules, say reformers.
But that hasn’t happened.
The situation hasn’t done much for the agency’s reputation.
“The Federal Election Commission is itself a campaign-finance scandal,” said longtime FEC critic and campaign finance reformer Fred Wertheimer, founder and president of Democracy 21.
“None of the players in the political arena had any reason to believe that the campaign finance laws would be enforced,” Wertheimer said. “The White House needs to address it or else must bear responsibility for this campaign-finance scandal continuing.”
As both Obama and GOP rival Mitt Romney raised hundreds of millions of dollars for their campaigns, long-time allies of each man launched supposedly independent super PACs that served as attack dogs during the long slog of the election.
Former White House aides Bill Burton and Sean Sweeney created the pro-Obama super PAC Priorities USA Action, while former Romney campaign advisers Carl Forti, Charles Spies and Larry McCarthy created the Restore Our Future super PAC to boost the former Massachusetts governor’s candidacy.
Both groups raised tens of millions of dollars, often from donors who also gave the legal maximum to the campaign committee of their preferred presidential candidate. Top campaign officials even appeared at fundraising events for the super PACs, including Romney himself.
Meanwhile groups that didn’t disclose their donors — such as Crossroads GPS, which was co-founded by GOP strategist Karl Rove — reported spending at least $300 million* on political ads, according to the Center for Responsive Politics.
The activities of these new spending groups prompted numerous complaints by reform groups, alleging that FEC rules and existing laws banning coordination between campaigns and candidates — as well as those requiring disclosure of donors to outside spending groups — were being violated.
Many organizations have also sought “advisory opinions” from the FEC, seeking guidance on the contours of the new campaign finance landscape. The commission, which consists of three Republicans and three Democrats, has repeatedly deadlocked along partisan lines.
Despite a ban on outside spending groups coordinating with candidates, the commission tied 3-3 on whether the Republican super PAC American Crossroads could feature political candidates in ads with messages that were “thematically similar” to candidates’ campaign materials.
Nor could it reach consensus on whether using the phrases “the White House” or “the administration” in negative ads ahead of Election Day referred to a “clearly identified candidate for federal office,” which would have required the American Future Fund, a conservative nonprofit, to disclose information about its donors.
The three Republican members supported the conservative groups’ positions in both cases.
“If you had an FEC that was at least half-way sentient, they would have promulgated regulations that made clear the kind of coordination and links that would not be permitted,” said Meredith McGehee, policy director at the Campaign Legal Center. ”You could have had an FEC that would have stopped this ‘my super PAC’ phenomenon.”
Likewise, Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington (CREW), agrees that a functioning FEC would have led to “more enforcement of the rules” and “more disclosure of some of the donors behind the negative ads” during the 2012 elections.
Only one commissioner, Republican Chairwoman Caroline Hunter, is working on an unexpired term — though it will end April 30.
The term of Democrat Ellen Weintraub, the commission’s vice chair, expired more than five years ago, in April of 2007.
“Every day I go in and check to see if my key still works,” said Weintraub. “They can replace me at any time. I used to get nervous about it, but now it’s become a fact of my life.”
The terms of Democrat Steven Walther and Republican Don McGahn both expired in April of 2009, while the terms of Democrat Cynthia Bauerly and Republican Matthew Petersen expired in April of 2011.
The law allows the commissioners to retain their seats until replacements are nominated by the president and confirmed by the Senate.
Since taking office in 2009, Obama has nominated just one individual for a seat on the FEC — labor lawyer John J. Sullivan, who, in 2010, told the Center for Public Integrity that the nomination process was “broken” after his lingered for more than 15 months, prompting him to withdraw from consideration.
Conservative lawyer Steve Hoersting doesn’t see the nomination of new commissioners as a top priority for the White House.
“With Benghazi to answer for, treaties to consider and spending cuts to champion, I don't think appointing new commissioners will be an early priority for the Obama administration, nor should it be,” he said.
Many campaign finance reformer advocates, though, are cautiously optimistic.
“Obviously, he has less to worry about from political opponents now that he’s been re-elected,” said Sloan of CREW. “I think there’s going to be [bipartisan] agreement that new FEC commissioners are warranted.”
For now, the White House isn’t saying.
The president “intends to nominate well-qualified candidates” to the FEC, according to spokesman Eric Schultz. But when pressed for specifics on timing, Schultz said he was “not going to publically speculate on future personnel decisions.”
* Correction (Nov. 26, 2012, 10:25 a.m.): This number has been adjusted to correct a calculation error by the Center for Responsive Politics.