Republican Matthew S. Petersen announced his resignation from the Federal Election Commission (FEC) this week. Ho hum news this is not. What it means is that the government agency charged with overseeing compliance with the federal campaign finance laws has been gutted. It now lacks the ability to meaningfully function in the run-up to the 2020 presidential election.
There are two primary takeaways here. The first is that this is not unwelcome news for conservatives — such as Senate Majority Leader Mitch McConnell (R-Ky.) — who believe that government oversight of federal campaigns is bad in general. McConnell led the years-long charge to kill the Bipartisan Campaign Reform Act of 2002 (BCRA), a feat that was largely accomplished by the Supreme Court with its 2009 decision in Citizens United v. Federal Election Commission. That case overruled on First Amendment grounds the statutory bans on soft or “issue-ad” money spent by corporations and unions close to presidential primaries and general elections.
With the FEC now out of commission, there is no longer a cop on the block to enforce the remaining rules-of-the-game aimed at enhancing fair and free elections in the United States. If no cop is around to pull over speed-demon drivers, the speed limits become meaningless. Translation? It’s the Wild West in federal-campaign-land, and individual voters are the ones who will suffer for it.
The second takeaway is that, once again, Congress is to blame for this travesty.
The reason Congress is to blame has to do with the way that the FEC is structured. Congress — not the Constitution — creates federal agencies by statute. Those statutes also give agencies their job descriptions. Because Congress lacks the political will and expertise to do lawmaking across-the-board, it gives agencies the power to make laws for it. This handoff of the legislative baton occurs by statute. When agencies make laws pursuant to their statutory power, we call those laws “regulations.”(truncated)