The Crucial Anti-Corruption Reform Missing from Warren’s Platform
As the first entrant into the 2020 Democratic primary field, Elizabeth Warren hopes to be the “anti-corruption” candidate. Her platform includes an ambitious set of money-in-politics reforms that would make illegal some of the tactics most commonly used by wealthy interests to influence federal policy.
However, Warren’s platform is missing one crucial component: enforcement. Without a strong cop on the beat, even the most ambitious anti-corruption regulations will be rendered ineffective as candidates, individual donors, super PACs, and dark money groups ignore or skirt them with impunity. Warren herself acknowledged this reality in a 2016 report on corporate crime, arguing that “laws are effective only to the extent they are enforced” and that “a law on the books has little impact if prosecution is highly unlikely.”
When it comes to our national campaign finance system, the Federal Election Commission (FEC) is supposed to be that cop. Created in the wake of Watergate, the FEC is the designated enforcer of America’s federal campaign finance laws, ensuring that politicians and interest groups alike play by the rules set forth by Congress. But the FEC is badly broken. With only four of six seats filled, all by holdover commissioners serving anywhere from six to eleven years past their appointed terms, it barely has a quorum.
The Problem Is Partisanship
At root, the problem is the Commission’s partisan appointment process. Its six commissioners are selected by party: three Democrats, three from the GOP. While laudable in its intent to prevent one party from dominating the ethics enforcement body, this design has resulted in a commission incapable of agreeing on anything but the most milquetoast of resolutions — and sometimes not even on those. When planning the FEC’s 40th anniversary party, the six appointees reportedly argued about “whether to rent a theater, whether to publish a report, whether to serve bagels or doughnuts, and whether, in fact, the agency even had an anniversary worth noting.”
There are serious consequences to this partisan divisiveness. As former FEC Chair Ann Ravel wrote in a scathing report upon leaving the commission, “a bloc of three Commissioners routinely thwarts, obstructs, and delays action on the very campaign finance laws its members were appointed to administer.” The consequences have been dire: “major violations are swept under the rug and the resulting dark money has left Americans uninformed about the sources of campaign spending.”
The result is predictable: a hamstrung regulatory body unable to enforce even the meager money-in-politics laws already on the books. Worse still, the FEC is just one retirement or resignation away from losing its quorum entirely, rendering it incapable of penalizing violators, passing new rules, or even providing official advice to campaigns attempting to act in accordance with the law. In his first two years as president, Trump has nominated only one person to the FEC — Trey Trainor, a Texas Republican generally opposed to campaign finance restrictions — and the U.S. Senate has yet to even hold a hearing on his appointment.
The good news is that a window is opening for reform. Increasingly, both Democrats and Republicans in Washington recognize that a dysfunctional FEC is at best a waste of taxpayer dollars and at worst a handout to unlawful donors and politicians hoping to avoid prosecution. Support is building in Washington for a bipartisan fix that would return the FEC to its mission as an apolitical enforcement body. The timing could hardly be better for Warren to take up the mantle of reform.
We Know How to Fix the FEC
For the FEC to effectively enforce our nation’s campaign finance laws, it must be insulated from the partisan animosity gripping Washington. The first step is to downsize the Commission from six members to five. This would dramatically reduce opportunities for gridlock by making it impossible for commissioners to split evenly along party lines.
Second, the President should no longer be in charge of proposing new commissioners. Instead, a bipartisan, blue-ribbon panel of judges, legal scholars, and former legislators should be placed at the helm of the nominating process. These experts would put potential names on a list, which the president would draw from when selecting a final slate of appointees.
Analogous structures have been successfully used at the state level. In Wisconsin, members of the highly effective (albeit recently dismantled) Government Accountability Board were all former judges nominated by a committee of appellate court judges. This nonpartisan team conducted a successful investigation of Scott Walker’s 2011–2012 recall election campaign — so successful, in fact, that the Republican-led legislature promptly shut down the enforcement body.
The set-up is similar in Hawaii, where a nonpartisan “judicial council” nominates two people for each seat on the five-person State Ethics Commission. The governor then appoints one of the two individuals nominated for each seat. Commissioners are still ultimately chosen by an accountable elected official, but the nomination process itself is not marred by partisanship. Just last month, the commission forced the resignation of a state employee who falsified documents to benefit a government contractor.
How Warren Can Support FEC Reform
There is little doubt that Warren understands the importance of a well-functioning FEC. In 2017, she called on the Commission to crack down on loopholes allowing foreign advertisers to run political ads on internet platforms like Facebook and Google, prompting the FEC to take a rare step in the right direction and propose new disclosure rules for digital advertising. Moreover, Warren has recently witnessed the systematic defanging of her own pet regulatory agency, the Consumer Financial Protection Bureau, under a Republican administrator, driving home the importance of independent leadership to effective enforcement.
Fixing the FEC’s appointment process is just one part of a comprehensive reform agenda put forward by nonpartisan, good-government advocates like the Campaign Legal Center and Issue One. These groups are backing legislation called the Restoring Integrity to America’s Elections Act, which restructures FEC operations in an attempt to break partisan gridlock, improve internal expertise, and speed up the rulemaking process. In 2017, when the bill was first introduced in the U.S. House by Democratic Congressman Derek Kilmer (WA-6), it attracted seven Republican and six Democratic co-sponsors. However, the Senate version of the bill could not attract any co-sponsors — an indication less of Republican foot-dragging than of incumbent legislators’ unwillingness to beef up enforcement of their own campaign activity. When the bill gets re-introduced this year, Warren should immediately endorse it and throw her weight behind building a bipartisan coalition of Senate co-sponsors.
But Congressional action isn’t a necessary prerequisite for FEC reform. Warren should publicly pledge that if she becomes president, she will create a nonpartisan blue-ribbon panel whose sole task is nominating future FEC commissioners. Moreover, she should promise to only appoint commissioners put forward by this panel — a realistic commitment to evenhandedly enforcing our nation’s money-in-politics laws. Not only will these nominees would be harder for the Senate to ignore, but Warren’s public commitment to nonpartisan oversight will elevate FEC reform to the national agenda, improving the chances of a more substantive Congressional overhaul.
Perhaps most importantly for Warren’s political future, emphasizing FEC reform will help set her apart from candidates who merely pay lip service to fighting corruption. Voters may not know much about the FEC, but they do know that politics as usual is not serving their interests. The more Warren taps into this anti-corruption zeitgeist during her presidential run, the better — both for her and for the country as a whole.