How does the FEC work? Is it like other independent agencies?

The FEC is not like any other independent regulatory agency. And when Congress created it in 1974 it was so different as to raise questions about its constitutionality.

The original plan was for the president, the House of Representatives, and the Senate each to nominate two commissioners, one Republican and one Democrat. All six commissioners had to be confirmed by both houses of Congress. To complete congressional supervision of the agency, the Clerk of the House and the Secretary of the Senate would be permanent, nonvoting commissioners. The FEC as originally designed was a separate body but was under the control of Congress.

This was a highly unusual way to appoint agency heads, but here, too, the federal circuit court for the District of Columbia decided to see how the FEC worked in practice before reaching a conclusion about its constitutionality. The court conceded that the FEC's quasiexecutive and quasi-j udicial powers could be unconstitutional, but decided that was "an abstract question that would be better decided in the context of a particular factual controversy."8

The Supreme Court was not inclined to see how the agency worked out in practice. It struck down the method of appointment, ruling that it violated the separation of powers. Focusing on the FEC's enforcement powers, the court found that "it is to the president, and not the Congress, that the constitution entrusts the responsibility to 'take care that the laws be faithfully executed.' "9 Watergate might have been the catalyst that made Congress create the FEC, but it was the Supreme Court that made the agency independent—or at least more independent than Congress had intended.

Most independent regulatory agencies are, like the FEC, run by presidentially appointed commissioners who serve for fixed, staggered terms, and must be from both parties. The staggered terms are key to an agency's political independence, as it prevents a president from being able to appoint every member. What the president can do is appoint one of the members as the chairperson, to be in charge of the agency. Those other agencies have an odd number of commissioners, usually five or seven. That means that some decisions can be made by party-line votes, but it also means that decisions do get made and that partisan deadlocks are impossible.

That is not true of the FEC, which has six commissioners: three Republicans and three Democrats. Majority decisions are necessarily bipartisan, but the even number means that deadlocks can make decisions impossible. The FEC is like other agencies in that the commissioners serve staggered six-year terms, which overlap so that only two members' terms expire at the same time. Although commissioners are appointed by the president and confirmed by the Senate, the resemblance to other agencies here is superficial.

Independent regulatory agencies are part of the executive branch, which is why appointments to them are made by the president. Buckley struck down Congress's original plan for the FEC because it was an extension of the legislative branch, not independent of it. But in fact, presidents make FEC appointments from names submitted by Congress; they confirm congressional choices, not the other way around. This informal practice perpetuates the formal congressional control over the agency that the Supreme Court found unconstitutional in Buckley.10

The FEC originated in the state to which other agencies sometimes decline: "capture" by the regulated industry. This can happen in other regulatory agencies for several reasons: more agency staff may use the revolving door to take positions in the industry; the agency's need for expertise makes it dependent on industry experts; or insufficient funding leaves the agency unable to attract and retain independent and qualified staff. All agencies are created by Congress, but only the FEC regulates its creators and relies on them for funding.11

Congress also made sure the FEC would not be effectively managed. The chairperson is not a presidentially appointed position, but one that rotates among the commissioners, each of whom serves for one year. The chairperson presides over commission meetings and represents the agency before Congress, but otherwise has little more power than any other commissioner. The job title is misleading, as the chairperson leads the FEC only in a ceremonial sense.12

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