July 8, 2002
"Campaign Reform's Worst Enemy" - A Commentary from Professors Ackerman and Ayres
This commentary originally appeared in the July 6, 2002 edition of "The New York Times."
Campaign Reform's Worst Enemy
The Federal Election Commission has embarked on a suicide mission. It has issued regulations that will undermine the centerpiece of the McCain-Feingold campaign-finance reform law: its ban on soft money. By taking this step, the commission will only succeed in making itself the next target of reform.
As it is currently organized, the F.E.C. deserves to die. A new commission, with more seasoned and less partisan members, would go a long way toward ensuring fairer and more honest elections. The question is how to reconstitute the F.E.C. so that this ideal can become a reality.
From its beginning in 1974, the commission's distinctive structure has made aggressive enforcement impossible. The six-member body includes three representatives from each party. Because four votes are needed for action, Republicans or Democrats can block any major initiative. The commission unanimously rejected its general counsel's finding that both the Clinton and Dole campaigns illegally accepted soft money during the 1996 campaign.
In contrast, the commission has acted with great speed to further the common interests of both parties in eroding the McCain-Feingold ban on soft money that is not subject to federal contribution limits. It has already approved a loophole allowing national parties to create "independent" groups to continue to raise soft money. Another regulation permits national candidates to help state parties raise unrestricted funds that will assist in federal election campaigns.
As a cartel of the two major parties, the agency also fails to satisfy basic standards of fairness. The McCain-Feingold law is the first election statute to include sentencing guidelines. Criminal defendants will predictably charge that they are victims of political vendettas, and the agency will be hard-pressed to respond credibly. The problem is structural, and it cannot be solved so long as party affiliation remains an important criterion in the selection of commissioners.
The only serious question is how to change this super-politicized system. Many reformers have been attracted to a simple solution: Replace the six-member commission with a single election czar. To assure this person's integrity and independence, require the president's nominee to win Senate confirmation and then guarantee the appointee a 10-year term.
But this simple solution is politically naive and fails to assure against systematic unfairness. The appointment of a new election czar would become a high-stakes matter. Whoever controlled his appointment could dominate the campaign system for an entire decade. If the presidency and the Senate were controlled by the same party, what would stop them from appointing a strong partisan?
A better way to ensure that the new agency is impartial is to make the F.E.C. a five-member body drawn entirely from the ranks of the retired federal judiciary. These men and women should have to be 65 years old to qualify. Such experienced judges would have compiled track records that permitted a full assessment of their fairness. By this stage in their careers, they would have their eyes on the history books and would be reluctant to tarnish their reputations by blatant acts of partisanship.
To further ensure impartiality, one vacancy on the commission should open up every two years, with each commissioner serving for a full decade. This structure would prevent a momentary period of single-party control of the White House and Senate from quickly transforming the agency into a partisan operation. The only way to restore the credibility of the tarnished F.E.C. is with experienced professionals who have established reputations for fairness.
Of course five retired judges wouldn't be able to do the entire job themselves. But neither would an elections czar. The judges could create a climate of legitimacy that would permit the commission to survive the bitter attacks that will invariably accompany the energetic implementation of any serious campaign reform agenda.
Bruce Ackerman and Ian Ayres are professors at Yale Law School and authors of "Voting with Dollars: A New Paradigm for Campaign Finance."