An Easy Way to Fix Democracy?

The FEC (Federal Election Commission) is currently a corpse – lifeless, ineffective, and useless. Elections financed by a tiny sliver of the population threaten the health of our democracy. The current murmur to reform and strengthen the agency should be a roar given the enormous effect doing so would have on restoring a government by, for, and of the people.

Currently, amending the Constitution is the most widely embraced solution for ending the systemic corruption fueled by money in politics. However, an amendment will take many years to implement, and as other reformers have correctly argued, steps should be taken in the interim. Unlike other short-term fixes however, reforming the FEC has the unique potential to actually eliminate the need to amend the Constitution.

Let’s back up a little. There are two primary arguments for a constitutional amendment. The first is well known –an amendment bypasses the Supreme Court, which has taken the idea of non-person personhood to ridiculous extremes.

The second is that any law put in place using the normal legislative process can be easily undone later. While not as well known, it is this second reason many in the reform community believe an amendment to be the most viable solution.

There are plenty of ways to reign in political spending that don’t run afoul of the Supreme Court…it is just virtually impossible under current conditions to pass a law with teeth, and then make it stick. Reforming the FEC is the exception; and one which could help facilitate additional reforms.

Here’s how a remade FEC would work:

First, decouple its budgeting from Congress so it couldn’t be starved of necessary funds (a huge conflict of interest). Have the agency instead submit a budget to the CBO for review and approval. Whatever the price tag, it pales in comparison to the cost of an electoral system rigged to favor big donors.

Next, we need independent and qualified commissioners, not political hacks appointed to gum up the works. Assign the GAO (Government Accountability Office) to compile a list of 25 qualified (and willing) candidates to serve as commissioners. From that list, the President and majority and minority leaders in both houses of Congress would each select one commissioner. The GAO would assign those selected to each head one of the five departments of the remade FEC: Elections, Lobbying/Ethics, Campaign Finance, Regulatory Review, and Public Outreach.

Elections, Lobbying/Ethics, and Campaign Finance are self-explanatory. Regulatory Review would examine how closely different regulatory agencies’ actions adhere to their stated purpose, offering non-binding recommendations. Public Outreach would educate citizens on current election laws and receive input about ways to improve them. All departments except Public Outreach would be armed with an investigative unit, with any wrongdoings uncovered turned over to the Department of Justice for prosecution.

Commissioners would serve five-year terms with one commissioner replaced annually. Each of the five selecting offices (President, majority/minority leaders) would rotate year-to-year in selecting the new commissioner; again from a list compiled by the GAO. Mobility between departments would be allowed, with terms tied to the individual, not the department.

In addition to oversight and regulatory duties, the commissioners would initiate changes to laws governing elections, campaign finance and lobbying.

Each year, the five commissioners would produce a list of changes to existing election law, with a 4-1 vote required for inclusion. Congress would approve or disapprove via a straight up/down vote in both chambers. If disapproved, the commission could be advised which specific items were objectionable. The commission could either remove or amend those sections before resubmitting, repeating until approved. Voters could hold accountable lawmakers voting against popular changes; making the process of government a bit more salient (another positive side effect).

Ultimately, allowing an independent agency to initiate changes to election, lobbying and campaign finance laws,means that Congress could no longer undo beneficial reforms. An amendment might still be necessary, but not for that reason.

A new and improved FEC would also be a powerful ally in government. An agency whose goal is to ensure elections are run fairly and above the board would likely view the current cozy arrangement between campaign donors, lobbyists, regulators and elected officials unfavorably; and act accordingly. Best of all, breaking off the FEC from the conflict-of-interest laden control of Congress would be a nonpartisan affair, as neither side should gain advantage from rules being fairly constructed and enforced.

Remaking the FEC should be a top priority for the enormous potential it holds.

Done properly, it could make the push for an amendment moot. At the very least, it can be a fantastic bridge between the status quo and an amendment, which even supporters admit will be a lengthy process. A long-term strategy is great, but we must arrest the momentum of the special interests devouring our government right now. Putting impartial judges on the field when we hold our elections is a great place to start.

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