Federal court ruling could create stricter FEC enforcement

In the wake of the Citizens United case, the common narrative that has transpired among public interest reformers and media outlets, is one that suggests that the FEC’s ability to enforce campaign finance law has been “systematically gutted” over the past decade.  Yet in a recent article titled “No More Easy Outs at the FEC,” former FEC Chairman David Mason posits quite the reverse.  Events that do not quite make it to the level of the Supreme Court, or that otherwise prove insufficiently flashy enough to attract the sort of media attention that Citizens United did, nevertheless have important implications for the direction of campaign finance.  In particular, Mason refers to a court ruling that he believes will engender a heightened sense of scrutiny and stricter FEC enforcement measures and notes, “..it may not be enough to comply with the law—you need to document your compliance decisions and procedures.”  Though relatively minor in its solitary impact, this one example sheds light on an overall national political trend that appears to get lost in the complexity of our system.   Trends such as the rising costs of campaigns and an increased need for professional campaign services have implications that pale in comparison to Citizens United.

Of course, procedural improvements implemented at the FEC are made with the intent to increase accountability within the “regulated community” (PACs, candidates, parties).  Stronger accountability is a nonpartisan issue that few would argue has any negative direct effects.  Yet what tends to get overlooked are the indirect effects, including the pricetag of these procedural changes and where the financial burden of it may fall.

The rising costs of running a campaign, whether as a function of strengthened regulations or the reality of increasingly expensive media markets, has been primarily shouldered by political candidates.  Over the past century, campaigns have moved away from a party-centered model toward a primarily candidate-centered one.  Faced with dwindling party support, candidates had to look elsewhere for the financial support necessary to pay for services such as voter identification, registration, and distribution of campaign literature. Services that have historically been functions of the party machine are now being outsourced to political professionals. (See this article by Jill Lepore for a more extensive background of the professionalization of politics and how it became a business.)

This candidate-centered trend has created the perception that the more money a campaign raises, the more legitimate and credible its candidate is regarded by the media and the public.  The way in which this phenomenon developed can be likened to an arms race.  Candidates stock their war chests with campaign dollars, primarily as a defensive strategy.  Yet understanding the potential for those funds to be used offensively, opponent parties and challengers respond by developing war chests of their own.  In this environment, it is therefore easy to see how a candidate’s legitimacy is a function of how much money they are able to raise.  Money determines the extent to which an incumbent candidate can defend itself from potential challengers, or a potential challenger can run a professional offensive campaign a seated incumbent.

If Mr. Mason is correct, then along with the campaign managers and field directors, compliance services will soon be added to the budget as an indispensable component of the campaign.   Interestingly, what is perhaps become more valuable than precluding incidental FEC fines for minor reporting violations, are the ways in which the competitive political environment may enhance the political role that compliance plays.  Stricter enforcement measures increase the potential for minor compliance errors to become political problems.  And what candidate wouldn’t love to link their opponent to a “campaign finance scandal?”  Compliance specialists are in a position to save the campaign untold amounts in political capital by mitigating potential infractions before they occur (and appear permanently on the public record).

Beyond the professional implications are the unanswered concerns:  should the ability to fundraise be such a vital prerequisite of our elected officials?  Undoubtedly a certain number of otherwise highly qualified individuals that are simply not magnets for money are filtered out in the current system.  What do goliath-sized incumbent war chests, which function to raise de facto “entry fees,” do to the competitive landscape in American politics?  From a compliance standpoint alone, challengers are at a significant disadvantage as they are much more likely to incur administrative fines, while having the least amount resources at their disposal.  Of all administrative fines that were exacted to candidate committees by the FEC in the election year 2010, 94% of them were to challengers and only 6% were to incumbents.  Lastly, what prospects are there for a legislative solution when all members of congress have, by definition, been beneficiaries of the status quo?

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