The King is Dead; Long Live the King — Overcoming the Structural, Political, and Legal Barriers to Effective Campaign Finance Enforcement: Surveying the Landscape and Looking Beyond the Federal Election Commission

Abstract

The FEC is broken, both in form and operation. This comment focuses on those limitations and the various calls for reform, and assesses their viability in light of the dynamics of the campaign finance realm. The central thesis of this comment is that, not only is the FEC broken, that any attempt at reform is found wanting after close examination because all attempts at reform focus exclusively on administrative restructuring. They fail to address the systemic pressures of the campaign finance landscape. This comment proposes that a model of concurrent enforcement — with both private and public enforcement of campaign finance laws — remedies these problems. By appending a common law siphon, instead relying only on an administrative dam, the pressures and problems of campaign finance can be better managed. In Section I, this comment examines the inbuilt sources of the FEC’s weaknesses. Beginning with structural issues, the comment notes the inherent faults created by the FEC’s statute. Specifically, the statute demands an even number of commissioners, split equally between both parties, which results in a Commission that stalemates on the most salient issues. Further, the statute lacks a means of effectively guaranteeing merit selection which reifies partisan stolidity by ensuing appointees are political insiders instead of neutral law enforcement professionals. Next, the combination of a mechanically dilatory enforcement mechanism and the FEC’s exclusive civil enforcement power delays and neuters attempts to enforce Federal election law. Finally, the combination of political pressure — which may never be fully insulated against — and the rapidly shifting sands of campaign finance jurisprudence leaves the weak and sclerotic FEC in a highly dynamic and fluid environment. Thus, the FEC is a rigid enforcer of a highly liquid arena; the FEC’s structure is inappropriate for its environment. In Section II, this comment introduces and analyses the various structural reform proposals. The many reform proposals — from both libertarian and progressive perspectives — share one element: a unstated premise that reform of the agency is all that is needed. These proposals, taken together, build a single administrator agency, with a merit based and tenured administrator, with administrative law judge adjudications, and a budget which is protected from capricious Congressional adjustment. Yet, the unstated premise is the undoing of these proposals. Because of it, they do not readjust the environmental pressures of campaign finance and, in effect, build a stronger dam that fails to address the growing onrush of campaign finance hydraulics. A strong dam may help, but it can always be overwhelmed. In Section III, this comment explains why any reform effort must address the complex nature of the campaign finance landscape by applying complexity theory to the problem. It explains complexity theory in general and the specific importance of the concepts of emergence, complex adaptivity, and the dangers of non-complex remedies for complex problems. It then describes the administrative fitness landscape in general and the campaign finance fitness landscape in particular, with emphasis on the impulses toward inaction and inefficiency. In Section IV, this comment lays out the need for an adaptive management system and searches for new models of enforcement. It uses lessons from securities regulation and environmental regulation to note the potential remedial effects of a concurrent private-public enforcement system. It traces the need for an explicit, congressionally mandated cause of action, and then notes the benefits and burdens of such a system. Such a concurrent system would present its own problems, but they are problems the judiciary is well used to addressing and which could be solved by analogy to the securities regulation model.