Exclusive: FEC inaction on enforcing election laws rises more than 600 percent
Little-noticed Republican appointee has encouraged deadlock
After GOP lawyer Caroline Hunter helped lead the national Election Assistance Commission, a propitious series of events allowed her swift confirmation to the Federal Election Commission.
The result, along with FEC appointments of her two Republican colleagues, has been a staggering decrease in the commission’s ability to enforce campaign finance law.
A new statistical analysis shows that the number of FEC enforcement decisions that ended up in deadlocked votes — three-three ties on the six-member bipartisan commission — soared more than 600 percent in 2009.
Earlier stories in this series: “FEC Commissioner helped RNC conceal role in 2004 vote suppression” and “Ideology trumps experience in FEC commissioner’s rise.”
With von Spakovsky out, Hunter quietly slips in
By the time Hunter was nominated to the Federal Election Commission in May 2008, President Bush’s nomination of Republican Justice Department official Hans von Spakovsky had already been stalled in the Senate for nearly two-and-a-half years. Teamed up with government watchdog groups and former Justice Department colleagues, Democrats fought fiercely to prevent his confirmation.
In January 2006, while Congress was out of session, Bush had given von Spakovsky a one-year recess appointment to the FEC, circumventing a Senate confirmation hearing.
During the long fight over von Spakovsky’s nomination, the nomination process for other prospective commissioners had stalled as well. By the time von Spakovsky finally withdrew his nomination in May 2008, the FEC was down to only two members with the election year already in full swing. It had not been fully functional for several months.
The Federal Election Commission is supposed to consist of three Democrats and three Republicans. By law, the commission requires at least four affirmative votes on a decision for the commission to take action on issues, including enforcement and regulation.
Once von Spakovsky withdrew, Democratic and Republican Senate leadership worked toward solidifying a package deal of nominees from both parties. Their selections would then be confirmed uncontested.
Hunter was one of those nominees.
At the time, Roll Call reporter Matthew Murray wrote, “Hunter, whose proposed nomination would expire in 2013, is a seasoned — and fully vetted — GOP insider who has worked in the current Bush White House and as a lawyer at the Republican National Committee.”
It turned out, however, that Hunter’s selection largely escaped notice.
With all the focus on preventing von Spakovsky’s confirmation, Hunter’s ascension to the FEC evaded scrutiny even by some of the staunchest of von Spakovsky’s opponents.
Craig Holman, a campaign finance expert at the Washington watchdog group Public Citizen, admitted to Raw Story that he was so relieved after von Spakovsky’s withdrawal he didn’t think twice about Hunter, even though he had no idea who she was.
“I knew nothing about her,” Holman said. “When she was appointed, I didn’t have a clue where she came from or what she was about or how she would act as an FEC commissioner. And that just shows the lack of review and lack of scrutiny for these FEC appointments.”
Holman believes that was “exactly” the intent behind her nomination.
“When [von Spakovsky] was finally removed and replaced with Hunter, I just didn’t have a clue who Hunter was,” he said. “So I didn’t even comment on it.”
Joe Rich, a former Justice Department Voting Section chief, who along with several career Justice Department colleagues wrote an open letter to Congress arguing against von Spakovsky’s confirmation, described a similar experience.
“After von Spakovsky finally withdrew, I don’t think I was even aware that she’d been nominated,” Rich told Raw Story.
“All those months that they were trying to get Hans in, the Republicans, it was a real battle, a major battle in the Senate,” he explained. “And finally the Democrats essentially won that battle. But I think in winning it, they just wanted him gone and once he was gone I think everybody felt they just needed to fill those positions.”
“Frankly,” Rich added. “I didn’t even know she was on the FEC.”
Holman said that Senate Minority Leader Mitch McConnell (R-KY) has a history of recommending people who are ideologically opposed to enforcing campaign finance laws.
“Quite frankly, Mitch McConnell is committed to try just throwing a monkey wrench into the entire campaign finance system,” said Holman. “And he’s figured out one of the most effective ways of doing it is to appoint people who are opposed to the campaign finance laws to the Federal Election Commission.”
McConnell could not be reached for comment.
Historic deadlock over enforcement action
Campaign finance and FEC law experts cited an historic increase in the FEC’s inability to muster the four votes necessary to take action since Hunter and her two Republican FEC colleagues Donald McGahn and Matthew Petersen joined the commission.
Paul Ryan, an FEC law expert at the Campaign Legal Center, told Raw Story, “I have seen an increase in the number of deadlocks, three-three deadlocks on the commission, as a result of this ideological split.”
Ryan and other FEC law and campaign finance experts acknowledged that the commission tends to be filled by partisan stalwarts from both political parties.
The Senate deal for expediting the confirmation of FEC commissioners in the summer of 2008, which included Hunter, Petersen and former House Majority Leader Tom DeLay’s (R-TX) ethics lawyer Donald McGahn, also involved the confirmation of two Democrats with very close party ties. Joining the commission from the left were Cynthia Bauerly, a legislative director for Senator Charles Schumer (D-NY), and Steven Walther, a Reno attorney who used to be Senate Majority Leader Harry Reid’s (D-NV) personal lawyer.
But Ryan made a distinction between general party affiliation and the ideological approach driving Hunter and her GOP colleagues’ record of “refusing to enforce the law.”
Public Citizen’s Holman concurred.
“The Federal Election Commission is hopelessly deadlocked,” Holman said, “and the caucus of three Republicans really have realized that the best way they can prevent the enforcement of campaign finance laws is just by voting as a block to deadlock everything. Without a four-vote margin, the FEC can’t act.”
The new statistical analysis performed by Holman for Public Citizen, which he released exclusively to Raw Story, shows that from 2003 to 2008 the number of FEC enforcement decisions that ended up in deadlocked votes averaged less than 2 percent and in three of those six years averaged less than 1 percent. (Holman said those low percentages have been consistent since the creation of the FEC in 1975.) Yet, in 2009, Holman found that deadlocks on enforcement cases jumped to 12.6 percent — an increase of more than 600 percent.
(The full Public Citizen analysis, showing that there has not been a comparable leap in other types of votes, can be found here.)
Both Hunter and fellow Republican FEC commissioner Donald McGahn have defended their record by claiming, respectively, “the law is not clear and absolute in many cases” and “the elusive spirit of the law can, and does, lead to disparate, unfair results.” Both also assert their stances stem from concerns about discouraging political participation.
An op-ed Hunter published in Roll Call in July 2009 even argued that increased “deadlocks” — 3-3 votes where no action is taken — are a positive result and the intention of the FEC’s designers.
“Congress made an affirmative choice,” Hunter posits, “not to create an odd-numbered commission, which would increase the likelihood of majority decisions and fewer ‘deadlocks.'”
But structural flaws aside, the intention of the provision in the statute explained on the FEC’s website specifically states: “By law, no more than three Commissioners can be members of the same political party, and at least four votes are required for any official Commission action. This structure was created to encourage nonpartisan decisions.”
Hunter and her GOP colleagues, however, have used this structure to encourage the opposite outcome: partisan deadlock.
“Enforcing federal campaign finance laws is precisely the job of the Federal Election Commission,” Ryan said. He described “a tendency among Republican commissioners to forecast and prejudge what courts might do down the road, and determine in their own view that a law might be found to be unconstitutional or is unconstitutional even though the law was never judged to be such by a court and to refrain from enforcement along that basis.”
But Ryan said that “also is wholly inappropriate for an administrative agency like the FEC.”
“All laws are written to be enforced,” he added. “The exercise of Congress writing laws is pointless if there’s a notion out there that executive agencies, and in this case the Federal Election Commission, is not supposed to enforce the law that Congress passed.
“That makes no sense whatsoever,” he said.
Hunter also defended her record by saying she won’t “violate [her] oath of office by getting ahead of the law.”
Gerry Hebert, executive director at the Campaign Legal Center and a former DOJ voting rights attorney — who calls Hunter and her fellow GOP commissioners “three of the most partisan individuals ever to sit on the Federal Election Commission” and blames them for the dysfunction of the commission going “off the charts” — finds her approach to be a violation of the oath she swore to uphold.
“When you become an FEC commissioner,” he explained, “you take an oath that you are going to uphold the Constitution of the United States and the laws passed by Congress. If you disagree with those laws, you should not take an oath of office to uphold them. If your ideology says that these laws — I think I have First Amendment issues or I have concerns about them but they’re on the books, then you cannot — you cannot in good faith — take an oath to uphold those laws if you are going to let your ideology trump those laws.”
Hebert continued, “And the fact that people of such ilk are permitted to even be on the FEC is a disgrace.”
FEC spokeswoman Judith Ingram declined comment on behalf of Hunter and the commission.
Holman suggested altering how commissioners are selected.
“At this point we have a dysfunctional FEC and Hunter is one part of the problem,” he said. “It’s an agency that simply does not function anymore. We can’t just let one senator appoint the Republicans and another senator appoint the Democrats. We need to actually get some review and provide the President with choices instead of just rubber-stamping whoever Mitch McConnell or Harry Reid want appointed.”
Earlier stories in this series:
Brad Jacobson is a contributing investigative reporter for Raw Story. Additional research was provided by Muriel Kane.