This article was posted on Bob Bauer's Blog and is reposted here with permission of the author.

The Federal Election Commission, a six member body (now under five in number), may pass shortly, and for all practical purposes, out of existence, it now appearing that the Senate cannot agree on the pending nominations.  But another six member body may soon be born,  to enforce not the campaign finance laws but the House ethics code.  A task force established by the Speaker has now produced its recommendations, and this is the surprise of the season: the reform community has much to say about the ethics process and is virtually silent on the troubles of the FEC.

Or perhaps it is not as surprising as all that. The reform community has decided that the FEC, as currently constituted, is not worth the bother.  Not even the prospect  of the federal campaign finance law left unenforced in the middle of an election cycle has moved the reformers to protest.  In this sense, the reformers have made common cause with Mitch McConnell, each wishing to allow the FEC’s demise to speak loudly to their larger points. The reform community wants to make it clear that the FEC is beyond salvation and that the time has come to consider alternatives.  McConnell would go farther and argue that neither this agency nor a more “effective” or “powerful” version is needed or a force for good.  They agree, it seems, on the proposition of most immediate import, which is that they can do without this agency, at this time.

The reformers have now turned their attention to the proposal to establish an independent Office of Congressional Ethics to supplement ethics enforcement.  Their grievance, or the one they have chosen to highlight, is that the Office will not have independent authority to issue subpoenas.  Their fear (or argument) is that without this investigative authority, the Office will not be taken seriously. Witnesses will “stonewall”; investigations will be superficial; wrongdoing will go unaddressed.  Reform organizations would prefer a process that is more like a substitute for, rather than a supplement to, Congress’ own enforcement of its rules: an independent Director rather than Board decision-making, an independent staff, and independent subpoea power.  Congress would be left with a formal role, more or less relegated to passing on the independent Board’s recommendations at the end of the process and under much pressure to do as the Office asked or to explain, defensively, why it would not.

This article was posted at Bob Bauer's Blog and reposted here with permission of the author.

The Washington Post, faced with the choice, would put aside appointment controversies and keep the FEC in operating condition for this coming election year.  It is not warm toward Commissioner Von Spakovsky but it can abide another term for him if this is needed to avoid, in effect, closing the agency. And while the paper is troubled by Von Spakovsky’s “over the top” rhetoric on enforcement issues and reform positions, it does not find in him the “utter hostility” to the law that its believes Brad Smith, whose appointment the Post opposed, to have displayed.

This is an interesting editorial.  It will ruin the breakfasts of Gerry Hebert of the Campaign Legal Center and others who have put up furious and tireless resistance to the Von Spakovsky appointment.  But the Post position is as much a reflection on the FEC and the campaign laws as it is about Von Spakovsky: it is a meditation on “hostility” to the campaign finance laws, on the expectations for an agency with this charge and these powers, and on the politics of campaign finance enforcement.  It explains why, for the Post and other reform supporters, the FEC can be both “toothless”—a way of saying “useless”—and also, mysteriously, so badly needed.

So it goes with the FEC as beheld by its reform critics: can’t love it, can’t  live without it.  The Post speaks sympathetically of the view that “the FEC is a toothless agency in need of an overhaul.”  The Post does not, for all that, wish to see the agency “crippled”: it is a “referee”, needed fairly urgently “in a critical election year”.   What is that need, if the agency is so weak: why, as the Post says, is “a flawed FEC better than no FEC at all”?