Earlier today, 9 former FEC Commissioners (including RNLA Board of Governors members Lee Goodman, Matthew Petersen, and Michael Toner) wrote to congressional leadership to express their concerns with Titles IV and VI of Division B of this Congress' version of the "For the People Act" (H.R. 1 and S. 1 respectively). These sections of the nearly 800-page bill dealing with the FEC directly and campaign finance would, as the former Commissioners put it, "complicate the law and hinder grassroots political speech and activism, with little or no benefit to public accountability, transparency, understanding of public policy, or reduction in corruption."
Nine Former FEC Commissioners Warn of “Ruinous Effect” of H.R. 1 and S. 1 https://t.co/UflyEhQDBX— Institute for Free Speech (@InstFreeSpeech) February 9, 2021
Of greatest concern to the former Commissioners is proposed changes to the number of FEC commissioners that would destroy its credibility by morphing it into a body that can easily be dominated by a single party:
Most importantly, we believe that Title VI, by shifting the Commission from a bipartisan, six-member body to a five-member body subject to partisan control, would be highly detrimental to the agency’s credibility. It would lead to more partisanship in enforcement and in regulatory matters, shattering public confidence in the decisions of the FEC. The Commission depends on bipartisan support and universal regard for the fairness of its actions. The FPA frustrates these goals with likely ruinous effect on our political system.
Under current law, no more than 3 Commissioners may be from the same political party to encourage nonpartisan decisions by the Commission.
The letter further highlights other proposed changes to the FEC's structure and procedures that would hurt its credibility:
[I]t allows the Chair, who is appointed on a partisan basis by the President, to hire and fire the FEC’s General Counsel, a statutory position, with the support of just two commissioners. Thus, this crucial enforcement position can be filled with no bipartisan agreement, as the Chair, the other commissioner from that party, and an “independent” member appointed by a President of the Chair’s party, could make the decision. Further, it places sole authority to hire or fire the Commission’s Staff Director, also a statutory position, in the hands of the FEC Chair, not even requiring the support of an independent commissioner. The Staff Director oversees the Commission’s Auditing, Reports Analysis, Administrative Fines, and Alternative Dispute Resolution processes, which combined handle far more enforcement matters than the Office of General Counsel. Both the appearance and reality of bipartisanship in enforcement is fundamental to the FEC’s success, and Title VI destroys both.
The FPA also makes startling changes in the FEC’s enforcement processes, perhaps no more so than in § 6004 of Title VI. That section provides that, in the event the Commission, after reviewing or investigating a complaint, finds the respondent candidate, campaign, or other entity did not violate the law, the complainant may sue in federal court. There, the matter will be reviewed de novo, with no deference to the Commission’s findings of law or fact. If, however, the Commission finds that the respondent did violate the law, and the respondent seeks to contest those findings in court, the Commission’s rulings will be afforded the traditional deference given to administrative agencies by courts of law. In short, while the American justice system has traditionally erred in favor of the accused, so as to protect the innocent and unjustly convicted, the FPA turns the formula on its head, explicitly biasing the judicial review process in favor of findings of guilt against candidates, campaigns, and other defendants.
Furthermore, Section 6004 allows for the appointed General Counsel to launch investigations and even determine matters of guilt or innocence without any majority vote of the Commission. It does this by sharply limiting the time the commissioners have to consider a matter, and then substituting the General Counsel’s verdict for a vote of the Commission.
Finally, the letter focuses on the chilling effect that Title IV of the legislation would have on free speech:
Most notably, we reiterate the concerns previously expressed in 2010 by many of the signatories below regarding the “DISCLOSE Act,” included in Title IV, Subtitle B. The DISCLOSE Act is unnecessary, burdensome, and would stifle constitutionally protected political speech.
Similarly, the “Stand by Every Ad Act” included in Title IV, Subtitle D would make disclaimer regulation more complex, have a chilling effect on speech, and provide little or no information that is not already available to the public under the Federal Election Campaign Act (“FECA”) and existing Commission regulations. Indeed, in many cases, it would mislead the public as to the sources of an ad’s funding.
The former Commissioners' letter in its entirety can be read here.