The Federal Election Commission, the agency that administers and enforces campaign finance laws, has shut down.
How big of a deal is that? Well, the consequences will not be immediately felt — but if it stays shut down, it could significantly affect the 2008 elections.
As of now, the FEC has only two commissioners. It needs four to do anything. The reason for the shortage, of course, is the Senate stalemate over vote-suppression guru Hans von Spakovsky’s nomination. Sens. Barack Obama (D-IL), Russ Feingold (D-WI) and others have opposed Republicans’ efforts to have Spakovsky bundled with three other FEC nominees (2 Dems and another Republican).
And when Senate Majority Leader Harry Reid (D-NV) tried to hold up-or-down votes on each of the nominees separately in December, Senate Minority Leader Mitch McConnell (R-KY) blocked it. And that’s where things stand. The White House says that it’s standing behind Spakovsky (even though he’s packed his bags and gone).
The FEC’s shutdown could affect the election in a number of ways. The first and most obvious is the oversight role it plays with third party groups, such as 527s and nonprofits that spend tens of millions of dollars each election. But there are other — probably greater — ramifications.
For instance, the FEC disburses public matching funds for candidates. Since it’s shutdown, it’s prevented from doing that. And since John Edwards is the highest profile candidate to participate in that system, it might become a problem for him.
In December, The Washington Post hit on this, and Edwards staffers pronounced themselves unconcerned:
The FEC certified the payment of the first installment of funds this week, including $8.8 million for Edwards. But matching payments for money he has raised this month, or will receive in subsequent months, may have to wait until the FEC has four members.
There is debate among campaign finance lawyers about whether matching funds could be released without a formal commission vote, one Edwards campaign official said. Because the next installment of funds would not arrive until after the early primaries, strategists inside the Edwards campaign said they are not worried.
“We have the necessary resources to wage an aggressive campaign with the funds we currently have on hand,” said Eric Schultz, a spokesman for the campaign. “We fully expect the FEC to meet their obligations under the public financing system.”
Experts I talked to said that the campaign could likely borrow against the expectation that the FEC will resume business eventually. And it’s probably not a problem in the short term. But the longer the FEC is out of the commission, the greater possibility that it could become a problem.
On the Republican side, Sen. Mitch McConnell (R-KY) shows no sign of budging in the standoff. And why should he? “It’s my view that he doesn’t particularly care about the campaign finance laws,” Fred Wertheimer, the Executive Director of the nonpartisan watchdog Democracy 21, told me. “He’s spent a career opposing the laws and efforts to enforce them.”
When it comes to the FEC’s policing function, experts also told me that the FEC’s temporary absence (however long that is), wouldn’t prevent the commission from eventually taking action against ne’er-do-well outside groups. “Anything is going to be delayed rather than permanently lost,” Steve Weissman of the Campaign Finance Institute told me.
But that doesn’t mean the shutdown couldn’t have a wide-ranging impact. A TPM reader with a campaign finance law background who preferred to remain anonymous put it in context:
Anyone who cares about the political process in the U.S. should care about the FEC being shut down. A slow and ponderous watchdog is better than no watchdog at all. The FEC’s enforcement function is arguably not it’s most important role. Those who always intended to try and skew the result of the 2008 presidential election by illegal means would have done so anyway. They may still be caught and fined and possibly even be criminally prosecuted, but it will now take 4-5 years rather than 2-3 years. Those who want to affect the election but do so legally are the ones who are really screwed – there’s no way now to get official advice on how the law is to be interpreted. And everybody loses when the law is unclear.
