In a presidential primary season awash with campaign money, the federal watchdog that enforces campaign finance laws is muzzled. In a way, this is like allowing the IRS to go out of business at tax time – glee for the payers, but no way to run a country.
The Federal Election Commission is barely functioning with only two of six commissioner slots filled. That's not enough to form the quorum needed to issue regulations, start investigations, file lawsuits, or give advisory opinions.
This has been allowed to happen by the very people whose own campaigns can be subject to FEC review: US senators. Several are blocking the approval of four FEC nominees because of a fight over one of them, Republican Hans von Spakovsky.
When Mr. von Spakovsky worked for the Justice Department, he supported a voter-ID law in Georgia that Democrats believe suppresses voter turnout. The law was later ruled unconstitutional. Presidential candidate Barack Obama and several other Democrats put a hold on his nomination.
Now the entire process is frozen because the Democratic leadership wants an up-or-down vote on each of the four nominees – two Democrats and two Republicans – while his Republican counterpart insists on voting on them as a group, the traditional method.
But as senators dig in their heels, the FEC's in-box is filling up:
•The Democratic Party this week filed a complaint with the FEC asking it to look into Republican John McCain's decision to withdraw from public funding for his primary presidential bid. The FEC chairman says a quorum needs to approve Senator McCain's change of heart, but McCain's lawyer – a former FEC chairman – disagrees.
•Also this week, backers of the Obama campaign asked the FEC to block TV ads by backers of Hillary Rodham Clinton. The complaint is that the ads violate rules for 527s – advocacy groups named for their IRS designation. These groups can raise unlimited funds for issue ads, but not ads that tell people to vote for or against a candidate. One ad praises Senator Clinton on the economy and says, "tell Hillary to keep working on" solutions.
•Meanwhile, lack of a quorum is preventing the FEC from writing regulations for an important part of a new federal ethics law. The law requires the disclosure of "bundled" donations – contributions grouped by a fundraiser.
•If the FEC nomination battle drags on, nominees may give up and new ones would have to be found. That could endanger the FEC's ability to grant public financing in time for the general election.
Only pressure from the media, the public, and advocacy groups is likely to move the Senate to compromise. Lawmakers prefer a snoozing FEC watchdog to one with real bite. Indeed, they designed it that way.
The agency was set up in 1975 to prevent the excesses that helped produce Watergate, but Congress didn't work very hard at empowering it. With three Democrats and three Republicans on the commission, it's hard to always get an agreement. Underfunded, the FEC moves slowly and softly. It was only last year that it fined several 527s for violations in the 2004 campaign – and the fines were small.
Still, a watchdog at the gate is better than one locked in its doghouse. The problem with one nominee is not worth putting the FEC out of business.