It seems unlikely that the Supreme Court will revisit its mistakes in Citizens United so long as the five justices who were in the majority in that case remain in place. But the good news is that it’s not up to the court to fix some of the worst problems we saw in the 2012 election. Nor does Congress have to pass a new set of laws, although clearer congressional mandates would certainly help.
Instead, the FEC just has to do its job. For that to happen, we need new commissioners dedicated to enforcing the laws passed by Congress and upheld by the Supreme Court. As it happens, five of the six commissioners are holdovers whose terms have expired.
To overhaul the panel, Obama will have to upend decades of tradition. Since the establishment of the FEC, presidents have appointed commissioners according to an unwritten agreement: Two have been proposed by the Senate leadership (one from each party), two by the House and two by the White House. The nominees got routine Senate confirmation.
That clearly needs to change. The president could start by bringing in a bipartisan group of outsiders who know something about enforcing the law — former judges, prosecutors and state election officials — and agree to nominate to the FEC both the Republican and Democratic nominees whom the group proposes. If senators wanted to object to these names, they would have to do so in public and justify their reasons.
It might be tempting to say we don’t need an FEC. After all, even with no effective watchdog in place,Adelson and lesser-known billionaires weren’t able to buy the Republican primary, let alone the presidency. But the big bucks spent by super PACs allied with losing Republicans undoubtedly distorted the primary process. Without them, Romney would have speedily become the nominee; he could have started his campaign months earlier, and with more money in the bank.
And though Obama’s mostly small donors matched the Republican campaign chest, he had an advantage no Democrat will have in 2016: He was the incumbent, able to start his campaign 18 months before the election, with the names of millions of supporters already on file.
If the Democrats — and the Republicans — want to change things for the better, we need a functioning FEC to produce regulations that adhere to the law. Then it has to ensure that candidates and “independent” outside groups alike follow them.
Trevor Potter was a Republican FEC commissioner from 1991 to 1995, serving as chairman in 1994. A Washington-based lawyer, he has represented Stephen Colbert and appeared on “The Colbert Report” to discuss election law and Colbert’s super PAC.