Blog Post #15: FEC Hearing on Campaign Finance Reform

By Vincent Brown

On February 11, 2015, the Federal Election Commission (“FEC”) held its first public hearing on an Advanced Notice of Proposed Rulemaking (“ANPRM”) in response to the recent Supreme Court decision ofMcCutcheon v. FEC.[1] The FEC, responding to significant and vast public concern regarding the flow of money in politics, solicited public comments associated with McCutcheon.[2] This public outreach, the first in many years by the FEC, netted 32,000 comments and led to a hearing on February 11, 2015 that began at 8:00 a.m. and ended at 4:00 p.m.[3]The ability for the public to interact with other election lawyers and consultants allows the public to engage with campaign finance issues. However, this hearing does little to remedy the underlying problems associated with the FEC and campaign finance.

The first, and biggest, problem is the lack of misinformation about the issues related to campaign finance. Many assert “half truths” towards Independent Expenditure Committees (often known as Super PACs).[4]Several misconceptions surrounding money in politics include the idea that Super PACs hide the money they receive, they cannot talk to candidates that they support, they contribute to federal candidates, and that an amendment would solve all of these issues.[5] Campaign finance is incredibly complex, but this subject becomes vastly more complicated when competing groups issue varying, and often wrong, information.[6]My solution is for the FEC to engage the public more often. This could be accomplished by reaching out to the public at an earlier age, particularly during the formative years of a person’s life (Elementary and Middle School), and discuss potential careers associated with election law along with the importance of having fair and functional regulations.[7]

Furthermore, by having election and political lawyers speak to students around the country, the problem of a lack of civic public education can be solved.[8] While the problem of public education is a long and complicated one (which I do not intend to wade through), it is critical to start at a young age to engage all people in the political process. Thomas Jefferson once said, “An enlightened citizenry is indispensable for the proper functioning of a republic.”[9] I firmly believe the enlightenment of the citizenry must start at a young age.

One major impediment to responding to public concern on the amount of money in politics is the very structure of the FEC. The FEC is made up of six members, three from each party, with four votes being required for any official commission action.[10] Although the FEC’s website says that this structure was created to encourage nonpartisan decisions, the reality is that the very opposite has occurred.[11] The structure of the FEC itself has caused campaign finance reform to grind to a halt.[12] In this hyper-partisan environment, the structure of the FEC is simply no longer viable. It is time for the FEC to be reformed. There are numerous proposals that have been suggested but I believe it is rather simple to fix.[13] I believe that Commissioners of the FEC should have a set term of four years. There should also be 5 or 7 of commissioners and one rotating chairman among them all.[14] This would solve the problems associated with voting gridlock on FEC decisions and allow a fair and equal opportunity to members of both parties to affect campaign finance decisions in the future.

[1] 134 S. Ct. 1434 (2014).

[2] See Mike Papantonio, Where’s the Public Outrage About Big Money in Politics?, AlterNet (July 7, 2014), http://www.alternet.org/news-amp-politics/wheres-public-outrage-about-big-money-politics (“Even though a staggering 85% of the American population recognize that money is killing our democracy, there is still no palpable outrage like we saw in the history leading up to the 19th Amendment granting women the right to vote.“).

[3] See Peter Overby, FEC Invites Comment On Campaign Finance Laws At First Public Hearing, NPR (Feb. 10, 2015 4:40 PM),http://www.npr.org/2015/02/10/385267286/fec-invites-comment-on-campaign-finance-laws-at-first-public-hearing.

[4] Robert Lenhard, 5 Myths about Super PACs, InsidePoliticalLaw (Feb. 6, 2015), http://www.insidepoliticallaw.com/2015/02/06/5-myths-about-super-pacs/.

[5] Id.

[6] See Michael Doyle, Supreme Court wades into campaign finance law’s sea of complexity, McClatchy Washington Bureau (Oct. 8, 2012),http://www.mcclatchydc.com/2013/10/08/204717/supreme-court-wades-into-campaign.html (discussing how during a Supreme Court argument the Justices waded into the complexities of campaign finance laws).

[7] See Editorial Board, Civics education is essential to democracy, The Sacramento Bee (Feb. 6, 2015 12:00 AM),http://www.sacbee.com/opinion/editorials/article9373664.html (“Like so many other once-important subjects in public K-12 classrooms – art, music, home economics, penmanship – civics education is being de-emphasized, to our collective detriment.”).

[8] See id. (emphasizing the need for high schools to increase civic education in their classrooms).

[9] See John Eyster, Citizens of a Republic must be EDUCATED to be effective citizens!, GazetteXtra (March 28, 2012),http://www.gazettextra.com/weblogs/we-people/2012/mar/28/citizens-of-a-republic-must-be-educated-to-be-effe/ (explaining the need for an educated populace).

[10] About the FEC, FEC.gov, http://www.fec.gov/about.shtml (last visited Feb. 15, 2015).

[11] Id.

[12] See Megan R. Wilson, FEC deadlocked on ‘dark money’, (Feb. 11, 2015), http://thehill.com/homenews/campaign/232582-fec-deadlocked-on-dark-money (discussing how at the recent hearing Professor Zephyr Teachout points out the underlying problems associated with the structure of the FEC).

[13] But see Eliza Newlin Carney, Who’s Standing In The Way Of FEC Reform?, National Journal (July 13, 2009),http://www.nationaljournal.com/columns/rules-of-the-game/who-s-standing-in-the-way-of-fec-reform—20090713 (stating how difficult it is to begin the process of reforming the FEC).

[14] See Wilson, supra note 12, (examining ways to fix the structural problems of the FEC).