McCain, Feingold Team Up Again Over FEC

Sens. John McCain (R-Ariz.), left, and Russell Feingold (D-Wis.) are blocking an appointment to the FEC until the president agrees to fill two other seats.
Sens. John McCain (R-Ariz.), left, and Russell Feingold (D-Wis.) are blocking an appointment to the FEC until the president agrees to fill two other seats. (By Melina Mara -- The Washington Post)
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By Dan Eggen
Washington Post Staff Writer
Friday, July 3, 2009

Seven years after their landmark campaign finance legislation became law, Sens. John McCain and Russell Feingold are reuniting under the banner of spending reform at a time when restrictions have come under fire both in the courts and at the embattled Federal Election Commission.

McCain (R-Ariz.) and Feingold (D-Wis.) announced this week that they were blocking the appointment of Democratic union lawyer John Sullivan to the FEC until President Obama agrees to fill two other open panel seats.

The two senators, who co-sponsored legislation in 2002 that banned "soft money" donations and other practices, said in a statement that the agency is "mired in anti-enforcement gridlock. The president must nominate new commissioners with a demonstrated commitment to the existence and enforcement of the campaign finance laws."

Liberal-leaning advocacy groups have complained that enforcement actions at the six-member FEC have effectively ground to a halt amid a partisan standoff between Democratic and Republican commissioners. Meanwhile, the Supreme Court is considering whether to uphold a ban on corporate spending in federal elections, which is a key component of the McCain-Feingold statute.

The dispute poses a fresh challenge for Obama, who has cast himself as a strong proponent of campaign finance restrictions but ran afoul of reformers during his record-setting election campaign by refusing public campaign money in order to avoid spending limits. McCain accepted spending limits for his failed general election bid and strongly criticized Obama for not doing so.

"It brings some national prominence to an issue that's been flying under the radar," said Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles. "Sullivan is basically a pawn here. This is much more about the recent deep partisan split at the FEC and the broader debate over the future of the campaign finance laws."

The FEC, which is divided evenly among Republican and Democratic appointees, has long been derided as feckless by campaign finance advocates and spent a large part of 2008 unable to make decisions because it lacked a quorum. Now with a full contingent, the panel has frequently deadlocked in 3 to 3 decisions, most of which have resulted in favorable outcomes for groups or individuals accused of wrongdoing under McCain-Feingold and other campaign finance laws. The panel is unable to enforce fines or other penalties without a majority vote.

In a typical case, GOP members refused to accept a settlement agreement between FEC staff and the November Fund, a group formed by the U.S. Chamber of Commerce that was accused of improper expenditures during the 2004 elections. In another case, the FEC returned a penalty check sent by a failed Democratic congressional candidate because Republican members refused to approve the enforcement action.

Several commissioners from both parties did not respond this week to requests for comment, but disputes between the two sides have become increasingly public and acrimonious. Two Democratic commissioners, Ellen L. Weintraub and Cynthia L. Bauerly, have issued joint statements, calling one decision "inexplicable" and castigating Republicans for revealing confidential documents in the course of a decision.

The panel's three GOP members -- Vice Chairman Matthew S. Petersen and commissioners Caroline C. Hunter and Donald F. McGahn II -- wrote in a recent letter to The Washington Post that the FEC too often targets inexperienced candidates and campaign operatives for minor violations. "Rote enforcement of hyper-technical rules often has an unfair impact on the inexperienced," they wrote.

Sullivan, an associate general counsel at the Service Employees International Union, would replace Weintraub, who has remained on the commission two years after her term expired. The terms of McGahn and Democrat Steven T. Walther expired in May, but Obama has nominated no replacements, which are typically chosen with Senate input.

For advocates of campaign spending limits, the FEC disputes are part of a broader ideological battle over campaign finance laws, which are viewed by many conservatives as unconstitutional limits on free speech.

"It's a continuation of an ideology that says we don't believe in campaign finance regulation," said Meredith McGehee, policy director for the Campaign Legal Center, which is run by a former FEC chairman allied with McCain. "The Republican commissioners are acting against their statutory obligation to enforce the law."

But former FEC chairman Bradley A. Smith, who heads a group called the Center for Competitive Politics, said such criticisms are "unfair smears" on the GOP commissioners, who are simply preventing federal bureaucrats from overreaching their authority in often complex and ambiguous legal disputes.

Smith is also sharply critical of McCain and Feingold, saying the two senators "are threatening the independence of the agency" to get what they want.

"The wind shifted a while ago in our favor, and that has put the other side back a bit," Smith said. "The system is working; it's just not working the way they want it to work."

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