The cries for changing the Federal Election Commission from some editorial boards and campaign finance lobbyists overlook the obvious dangers of an unchecked federal agency regulating the political involvement of citizens. When Congress created the FEC, it did not design an agency that could be wielded as a partisan weapon; instead, the agency is required to be equally divided, with, at most, three of its six members from the same party. Thus, the FEC is designed to ensure fair and impartial regulation and administration of campaign finance laws — not partisan or ideological witch hunts.
Speech regulators have been frustrated by the failure of recent campaign finance legislative proposals, including the DISCLOSE Act in 2010 and 2012. Given their legislative impotency, it is hypocritical for them to criticize the FEC for “failing” to do through regulation what Congress has not done through legislation. As an administrative agency, the FEC can only promulgate and enforce rules under authority delegated by a statute that has been severely narrowed by the courts.
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The agency’s harshest critics disregard the agency’s prime enforcement directive: Enforce the law as it is, not as some wish it to be. On the hot-button issue of coordination, for example, critics fault the agency for not acting even on the thinnest circumstantial allegations of improper coordination. Under long-standing coordination rules, however, certain conduct is required for a conclusion that a communication is coordinated, and more than mere speculation of such conduct is needed to launch an enforcement action.
Attacks on nonprofit, 501(c) organizations’ political spending is another topic garnering public attention. But merely undertaking some political activity does not mean that an organization must register and report as a political committee and disclose all of its activity. As the Supreme Court explained in Buckley v. Valeo, groups cannot be forced to file as political committees unless their major purpose is the nomination or election of a federal candidate. Critics of the FEC ignore this fundamental limit on the reach of the law.