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By Marion Edwyn Harrison, Esq.
January 17, 2008
Opinions vary as to the worth of the role of the Federal Election Commission (“FEC”) when it fully is functioning as prescribed by law. Regardless of one’s opinion as to whether the Federal election law scheme as legislated and implemented is the ideal, FEC is the duly constituted Federal regulatory agency and the only one. How dysfunctional - maybe just plain bizarre - that FEC should be stalemated as the country begins the 2008 Presidential and Congressional election year - and, to compound the dysfunction, begins it earlier than ever before.
FEC by statute is comprised of six Commissioners, nominated by the President, by and with the advice and consent of the United States Senate. At the moment it has only two Commissioners - hence, no quorum, no function.
How did this dearth develop? The short, and somewhat oversimplified, answer is that some Democratic Senators, including a first-term Senator from Illinois who is seeking the Presidency, by the (arguably iniquitous, but in any event sometimes misapplied) use of a “hold” have blocked one nominee, with the ensuing effect of holding up all of them and creating and perpetuating vacancies.
A reasonable system for choosing FEC Commissioners dates from the per curiam 1976 Supreme Court opinion in James L. Buckley et al v Francis R. Valeo, Secretary of the United States Senate, et al, commonly styled Buckley v Valeo. In addition to sustaining novel provisions of the Federal Election Campaign Act of 1971, enacted in 1974 over President Gerald R. Ford’s veto, the Supreme Court in effect directed a Constitutional method for appointment of FEC Commissioners.
The statute as enacted provided that there would be six voting FEC Commissioners - two appointed by the President of the United States; two by the Speaker of the House of Representatives, one each upon recommendation of the Majority and Minority Leaders; two by the President pro tempore of the Senate, also one each upon Majority and Minority Leader recommendation. The two Presidential appointees, as well as the four Congressional appointees, were to be divided evenly between the two political parties. Both Houses of Congress had to confirm all the appointments. For reasons which perhaps seem obvious even to a layman with an elementary knowledge of the separation of powers among the our tripartite Federal Government, the Supreme Court nullified the procedure.
Congress implemented the Supreme Court’s requirements - six voting FEC Commissioners, no nonvoting Commissioner, the six to be nominated by the President, confirmed by the Senate.
The Senate Majority and Minority Leaders were Senators Michael J. (Mike) Mansfield, of Montana, and Hugh Scott, of Pennsylvania. They were competent and pragmatic and worked together well to get things done. They entered a gentleman’s agreement that each would choose three individuals, those names informally would be forwarded to the President; and the Senate would confirm them. (So much for separation of powers between the Executive, Legislative and Judicial Departments, but that’s a separate, and at times theoretical, Constitutional subject. I like it, partially because a Supreme Court Justice and I lecture about it each summer.)
The foregoing informal agreement held until well into the William J. (Bill) Clinton Administration and to some extent has worked since then. It combines the pragmatic values of assuredness, promptness and bipartisanship.
The alternative is an FEC which is nonfunctional, overtly political by favoring one party over the other, or both. As of this writing, while daily and routine FEC business continues, the agency cannot make policy, adjudicate complaints with finality or act with respect to major issues - as, by way of example and not limitation, allowing statutorily authorized matching funds.
Hello, certain Senators: Is the way to begin the major election year?
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation
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