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Why Won't President Obama Take on the FEC?

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In the past few weeks, we have been bombarded with advertisements across the political spectrum. In fact, according to a recent study by the Wesleyan Media Project, more than $198 million has been spent on ads for federal races in just the past 5 weeks. President Obama has been vocal in his criticisms of the U.S. Chamber of Commerce and the enormous sums of money it and other shadowy organizations have been pouring into races, but he isn't taking any steps to stop it.

For far too long, the Federal Election Commission (FEC) has been a toothless joke of an agency. By law, no more than three of its six commissioners can belong to the same political party and it cannot act on anything unless at least four commissioners agree. Because of this, the commission is frequently deadlocked on enforcement matters. Commissioners are appointed on a rotating basis for six year terms, meaning - at least in theory -- that two seats are open for appointment every two years. It doesn't get past the theoretical level, however, because in reality, commissioners don't leave until their replacements have been confirmed. Half of the current commissioners have overstayed their terms. President Obama can and should replace them.

Instead, after almost two years in office, President Obama has nominated only one person, John Sullivan, to the FEC and he recently withdrew from consideration after more than 18 frustrating months passed without a Senate confirmation vote. Senator John McCain (R-AZ) - once, but no longer a proponent of strict regulation of campaign finances -- and Senator Russ Feingold (D-WI) blocked the nomination, claiming they wanted President Obama to fill all the vacancies at once. Typical of the Senate: better to take your marbles and go home if you don't get your way than have a functioning agency.

One of the FEC squatters is Donald McGahn, who is doing his level best to eviscerate the agency from the inside. Mr. McGahn is a Republican war horse who once served as former Majority Leader Tom DeLay's campaign finance lawyer, defending an audit of Mr. DeLay's PAC, Americans for a Republican Majority. Notably, as a result of an enforcement action instigated by CREW, in 2006 the PAC was forced to pay a fine of $115,000 - among the highest ever imposed by the FEC.

So even before he joined the FEC, Mr. McGahn had a history of attempting to flout campaign finance laws. Now, of course, Mr. DeLay is about to go on trial in Austin on charges that he illegally funneled $190,000 in corporate money through the Republican National Committee to help elect GOP Texas legislative candidates in 2002. Mr. DeLay also made a mockery of the redistricting process, deliberately trying to rig elections to make them easier for Republicans.

Perversely, it's Mr. McGahn who now has a leading role in assuring that all of our elections our fair, yet he has made it abundantly clear he will use his position to advance the partisan interests of Republicans, stating:

[The FEC is] "not like other agencies because you have the charge of the fox guarding the hen-house. You gonna appoint your guys to make sure you are taken care of. The original intent was for it to be a glorified Congressional committee. That's the way I see it."

So while Mr. McGahn fiddles for Republicans, Washington burns. The Karl Rove-backed group American Crossroads GPS and the Koch brothers' Americans for Prosperity have dumped tens of millions of unidentified dollars into this election to shore up support for Republican candidates. Similarly, Citizens for Strength and Security -- allied with Democrats -- is putting less, but still significant amounts of money into races across the country.

The worst part is that although a majority of Americans across the political spectrum believe the anonymous donors behind these innocuous sounding groups with venomous messages should be disclosed, the FEC -- the very government agency charged with keeping our elections clean and fair -- is sitting motionless on the sidelines.

Although the election is less than two weeks away, polling results are contradictory and we don't know which party will control the House or Senate. But we do know that no matter which party's candidates get the most votes on November 2nd, as a result of Mr. McGahn's efforts to annihilate the FEC's regulatory authority, the clear the winner on November 3rd will be America's biggest corporations who likely will have bought themselves several new members of Congress.

It's time for President Obama to do more than make stump speeches criticizing Citizens United and hinting of foreign involvement in American elections. FEC commissioners are presidentially appointed; it is way past time for the president to appoint some. President Obama should fill the vacancies on the commission and get rid of Mr. McGahn and his cronies as quickly as possible. Maybe when his re-election hangs in the balance, the president will finally display an interest in a functional, effective FEC.

Update: An original version of this post identified Mr. McGahn as Mr. Delay's ethics lawyer. He was Mr. DeLay's campaign finance lawyer.

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