Deadlocked in Regulation

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Monday, June 15, 2009

QUESTION: WHAT'S worse than a federal agency that lacks the quorum of commissioners necessary to act on a matter? Answer: An agency that has a quorum in place but is paralyzed from acting anyway because it is deadlocked along party lines.

Such is the sad situation at the Federal Election Commission, which spent the first half of 2008 -- which, you may recall, was an election year -- unable to bring any enforcement actions because of the lack of a quorum. Those are now looking like the good old days. Now, with the full complement of six commissioners in place, the FEC appears to be even more dysfunctional than usual, which is saying something.

The commission was designed to have power shared equally between the two parties, so that neither would have the upper hand in taking potentially politically inspired action against the other. This unusual setup has often produced 3-3 splits between Republican and Democratic appointees. But those deadlocks have tended to arise sporadically, and in ideologically or politically charged cases, not in run-of-the-mill enforcement actions.

That's no longer true. The three Republican appointees are turning the commission into The Little Agency That Wouldn't: wouldn't launch investigations, wouldn't bring cases, wouldn't even accept settlements that the staff had already negotiated. This is not a matter of partisan politics. These commissioners simply appear not to believe in the law they have been entrusted with enforcing.

The latest episode was revealed this month when two Democratic commissioners, Ellen L. Weintraub and Cynthia L. Bauerly, issued a statement about the commission's 3-3 deadlock over approving a settlement involving a 2006 California congressional seat. "This may be the most inexplicable resolution of a Matter Under Review that we have seen during our combined tenures on the Commission," they began.

An unsuccessful Democratic candidate, Arjinderpal Sekhon, had failed to disclose the occupation or employer for most of his contributors, as required by law, then failed to fix the faulty reports when repeatedly asked to do so by the FEC. In December 2007, the five sitting commissioners voted to proceed with the case. The staff negotiated a settlement. But by September 2008, with different commissioners, the three Republicans refused to back the agreement. As Ms. Weintraub and Ms. Bauerly put it, "Without the requisite four votes to approve the agreement, and despite a clear and undisputed violation of the law, the Commission effectively tore up the signed agreement and closed the file with no action taken. Over seven months later, the public has not been provided with any reasoning to justify this result."

This result is untenable. President Obama needs to act to get commissioners in place, Republicans as well as Democrats, who believe in enforcing the election law. The terms have expired for three commissioners, including Republican Donald F. McGahn II, thought to be a leader of the obstructionists. But a commissioner can remain in place until a successor is confirmed, and Mr. Obama has nominated a replacement for only one Democratic vacancy. The president needs to make certain that a replacement for Mr. McGahn is named -- and soon.


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