How does the FEC enforce other parts of the FECA?
Slowly and imperfectly. Congress has never been eager to regulate itself, and it designed a cumbersome enforcement process for the new agency. That process cannot move beyond the preliminary stage until at least four commissioners agree to open an investigation. And four votes are needed to approve each subsequent stage of enforcement.16
A case begins when the OGC receives a complaint that a candidate or committee has done something illegal. Based on the response the accused party makes to the allegation—the accused party is called the respondent—the OGC begins the initial investigation by opening a Matter Under Review (MUR). If the OGC finds reason to believe there has been a violation, it recommends that the commissioners approve further investigation.
If the commissioners agree, and the investigation turns up evidence of a violation, the OGC must get majority approval to move on to the next stage, conciliation negotiations with the respondent. If a conciliation agreement is reached, it too needs the commissioners' approval. And if the OGC is unable to reach an agreement with the respondent, another majority vote is required to file a civil suit.
Each of the stages involves OGC communications, called "letters," with respondents. The FECA gives respondents plenty of time to respond to these letters, and requests for extensions are normally granted. Each stage can take weeks, or months, meaning that it can take a year to resolve even routine complaints. More complex or contentious matters take much longer, and most cannot be resolved during the election cycle in which they are filed.
Complex issues also require staff attention, and congressional reluctance to meet the FEC's budget requests has left the agency understaffed. A 1999 audit by PricewaterhouseCoopers found the agency had a "skilled and motivated" staff, but that it was not large enough to handle the volume of enforcement cases. A largely supportive study of the agency done by political scientist Michael
M. Franz in 2009 suggested doubling its budget so it could hire more staff.17
The members of Congress who mandated cumbersome enforcement procedures were not entirely self-serving. Fear of overzealous or partisan prosecution was not completely unfounded, so it is not surprising that Congress made the OGC get bipartisan permission from the commissioners to begin each stage of enforcement. And both parties always nominated the "right kinds" of Republicans and Democrats to the commission, people who had close ties to congressional leaders and would not be too independent.
But there were no big ideological battles over nominations until 1999. That is when Senate Republicans nominated Bradley A. Smith, a professor at Capital University School of Law who had recently called for repeal of the FECA in a Wall Street Journal op-ed. Supporters of the law immediately opposed Smith, and President Bill Clinton asked the Republicans to name someone else. They not only refused, but also threatened to block consideration of Clinton's judicial nominees unless he agreed to their nominee.18
Smith's appointment put Senate Democrats in a bind. They had been no more eager than Republicans to put active reformers on the commission, but they would never have gone so far as to appoint someone who openly advocated repealing the very law he was supposed to enforce. Whatever they thought of the Republicans' choice, though, they too wanted to maintain congressional control over FEC appointments, which is what the Republicans were doing. In the end, Clinton stuck with tradition and appointed Smith, who then won Senate confirmation.19
A much bigger ideological battle took place six years later, when Republicans nominated Hans von Spakovsky as Smith's successor. Von Spakovsky also was a staunch opponent of campaign finance reform, but what had made him a more public figure than previous FEC nominees was his record at the Department of Justice: he had supported Georgia's voter ID law and a controversial redistricting plan in Texas. Those activities caused civil rights groups to join FECA supporters in protesting the nomination.20
Republicans responded by opposing the appointment of two nominees to fill vacant Democratic seats at the FEC—if von Spakovsky could not be confirmed, neither could anyone else. This time Democrats refused to budge. The result was a standoff that effectively shut down the FEC at the end of 2007 because it did not have enough commissioners to take official action. The standoff ended only when von Spakovsky withdrew his nomination in May 2008.21
The FEC was up and running again within a few weeks of von Spakovsky's withdrawal, but only in the sense that it now had a full complement of commissioners. The agency had the quorum it needed to take official action, but more of those actions were being blocked by 3-3 partisan deadlocks.