Give election reforms teeth

May 13, 2002|By Jules Witcover

WASHINGTON - In a little-noticed action, the Federal Election Commission tossed out a complaint by Sen. John McCain's 2000 presidential campaign that the spending by two supporters of George W. Bush on TV ads criticizing Mr. McCain's environmental record violated campaign finance laws.

The case involved $2.5 million worth of ads run by two Texas brothers, Sam and Charles Wyly of Dallas, operating as "Republicans for Clean Air." The ads lauded Mr. Bush as a clean-air champion and charged that Mr. McCain had "voted against clean energy." But they did not specifically ask viewers to vote for Mr. Bush or against Mr. McCain.

Hence, the proponents argued, the ads advocated an issue position, not a candidate, and because they were run independently, their cost could not be charged against federal spending limits on the Bush campaign.

In reality, the ads were typical sham "issue-advocacy" ads bought with unregulated "soft" money soon to be barred by the new campaign finance laws. Three Republicans on the FEC insisted there was no "express advocacy" as prohibited by the law for such ads. The three Democrats, not surprisingly, disagreed.

The 3-3 vote, scuttling any further investigation, was an action all too frequent in the 25-year annals of the FEC, which operates in a straitjacket by virtue of the political appointment of the six commissioners.

The president is authorized by law to name the commissioners, subject to Senate confirmation. But as a practical matter, the choices go to the Republican and Democratic leaders in Congress, who divvy up the six seats, recommending the commissioners to a pliant White House, regardless of which party controls it.

In the past, this arrangement has been OK with most members of Congress of both parties. They generally have considered the FEC, or at least its diligent staff, to be a royal pain in the neck. It bothers them with burdensome reporting requirements and even gets the commission to assess fines on occasion, when blatant partisanship does not prevent it.

Even in those rare times when the FEC has found presidential campaigns guilty of campaign finance law violations, the fines have almost always come too little and too late to have any practical cleansing effect on the system.

Campaign spending reviews and judgments lag far behind the campaigns, in effect inviting candidates and their campaign managers to ignore federal money limits. By the time penalties, if any, are assessed, the campaigns are over.

With the FEC remaining in place, the prospect is that even with the new campaign finance law, which curbs soft money and issue-advocacy ads 30 to 60 days before a federal election, this toothless tiger will continue to go on its merry, ineffectual way.

The principal sponsors of the new reforms - Republicans McCain and Rep. Christopher Shays and Democratic Sen. Russ Feingold and Rep. Marty Meehan - are planning a news conference this week to highlight a new task force study on the FEC. It will recommend a complete overhaul, arguing that the new laws will mean nothing unless the federal enforcement arm is itself radically reformed.

The study, conducted under the direction of Democracy 21, a prominent reformist group, will call for scrapping the political appointments to the FEC and replacing them with a single professional administrator and the use of ostensibly impartial administrative judges.

Whether members of Congress will agree to give teeth to an agency many already do not like, even in its ineffective state, is the big question. The head of Democracy 21, former Common Cause President Fred Wertheimer, ever an optimist, notes there was a time when few thought any serious campaign finance reform would pass in the hands of incumbents who thrived, or at least survived, under the old rules. They were proved wrong.

"A lot of the problem can be assigned directly to the failure of the FEC to enforce campaign finance law," Mr. Wertheimer says. There is no point in having stronger reforms in place, he argues, unless the enforcement agency is freed of the political influence that has hamstrung it in the past.

Jules Witcover writes from The Sun's Washington bureau.

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