**[Introduction]{.underline}**

This dissertation investigates the enforcement of political finance
regulation by the U.S. Federal Election Commission (FEC). One might
justify this topic by saying that political finance is an important area
of inquiry, as it forms an integral part of democratic politics, governs
the ability of candidates to communicate with the electorate and affects
their chances of success at the polls. Political finance laws have
attempted to regulate the activities of politicians, powerful financial
interests and ordinary citizens in a number of ways. For example, the
law has often contained prohibitions on sources of funding, placed
limits on contributions and mandated public disclosures. If the law is
to be successful in achieving its objectives, be that promoting
equality, deterring *quid pro quo* relationships, or maintaining public
faith in electoral politics, it has to be enforced effectively and
fairly.

Much has been written about campaign finance laws, political action
committees and soft money, but comparatively little has been written
about enforcement. This work attempts to fill this gap in the
literature. Additionally, what has been written tends to be informed by
strong ideological sentiment. For example, Cain and Lochner view
political finance regulation as undesirable and unworkable, which leads
them to advocate a *laissez-faire* approach.[^1] Yet public interest
advocates are equally ideological and tend to possess a conspiratorial
psyche, seeing corruption everywhere. For them, more regulation and
stricter expansive enforcement by an independent, blue ribbon panel, is
the only way forward. Therefore, most of the academic and journalistic
comment on enforcement has been normative. Whilst prescriptive
suggestions for change are important, this work is essentially
explanatory, helping to set out what is, not what should be. Although
the actions and motivations of individuals have been discussed at
length, this has been done in order to aid understanding, not for any
idealistic or moralistic purpose.

The first chapter explains how the law was enforced in the past and, by
doing so, sets later chapters in historical context. This endeavour also
establishes that the United States has never enforced campaign finance
law in a particularly vigorous way. Therefore, public interest advocates
call for a form of enforcement that has no historical precedent. The
discussion also focuses on how the executive ensured that few cases were
brought before the courts and how the judiciary and Congress have
undermined enforcement.

The second chapter examines the performance of the FEC through the
administration of its three principal programmes: (1) public financing,
(2) disclosure, education and outreach, and (3) compliance. This
examination establishes what the FEC has done well and what it has done
badly and why. Broadly, the FEC has been successful in administering the
first two programmes but has been found wanting in the third. In
particular, enforcement timeliness was poor. Timely enforcement enables
the electorate to make informed choices at the ballot box. When the
electorate are denied knowledge in a timely fashion, the utility of the
law is degraded. However, although the bureaucracy has been partly
responsible for that poor timeliness, many other factors have also
contributed to it. The chapter also discusses the implementation of two
relatively new pilot programmes, an administrative fines programme for
dealing with late and non-filers, and an alternative dispute resolution
programme (ADR) which sought to improve enforcement timeliness, prevent
future violations through education and promote a less adversarial
resolution of low level infractions. Whilst both programmes were pilot
projects, the study concludes that the fines programme possessed more
utility than ADR. Finally, the way the FEC exercised prosecutorial
discretion is examined. In the Commission\'s infancy, evidence suggested
that the Commission unfairly targeted insignificant, inexperienced and
poorly funded actors, yet this did not prove an enduring characteristic.
In fact, under the enforcement priority system (EPS) implemented in
1993, the FEC is more likely to take enforcement action against
high-profile repeat players than those who raised little money and
attracted few votes. Larry Noble, former FEC General Counsel, commented
that taking action against the powerful professionals gets you a
\'bigger bang for the buck.\'[^2] However, it was found that political
novices tended to attract the attention of the FEC because they made the
most legal errors. Whether high profile or inexperienced actors deserve
to be the focus of enforcement is a matter of opinion. Therefore, the
issue of enforcement fairness becomes a normative one.

The third chapter focuses on FEC Commissioners. These six political
appointees, evenly divided between Republican and Democratic Party
affiliates, control all major decisions carried out in the agency\'s
name and four votes are required in order to enforce the law. As the
even number of Commissioners and partisan divide might suggest, an
examination of the Commission\'s leadership found that the diffused
structure inhibited strategic planning. Although weak leadership has
been an enduring weakness at the Commission, far more criticism has been
directed at the Commissioner appointment process and the agency\'s lack
of independence. The chapter explains how individuals are appointed and
who has influence over that selection process. By doing this, one can
gain a greater understanding of the Commission\'s outlook, its strengths
and its weaknesses. For example, whilst the reform community advocate
the creation of a strong, independent, non-partisan, blue ribbon panel
insulated from political reality, research shows that the Commission was
created in such a way that it reflects that political reality. Again, a
normative issue arises concerning whether this reality is a good or bad
thing. Politicians generally view it as a good thing, whilst public
interest advocates generally view it as a bad thing. The discussion then
addresses the issue of Commission decision-making and rejects the
traditional orthodoxy that suggests that the Commission is impotent
because of partisan deadlock. Although partisanship has prevented
enforcement in the past, often occurring in high-profile controversial
cases, the partisan paralysis thesis misrepresents the decision making
process and the agency\'s proclivity to deadlock. The chapter explains
how consensus, legal interpretation, evidentiary and regulatory
philosophy all feed into Commissioner decision-making. Finally, the
Commission\'s court record is assessed. The thesis opines that whilst
the Commission has operated without a strategic litigation policy, this
may change in the future. However, in addition to that change,
litigation is likely to become more conservative, or timid, seeking only
to litigate where the Commission thinks it is on firm ground. This more
cautionary approach should help to improve the FEC\'s court record and
also ensures that the agency avoids antagonising powerful Congressional
leaders and their allies.

The fourth chapter explains how enforcement has been micro-managed by
Congress and undermined by a lack of support from the Office of
Management and Budget (OMB). The thesis asserts that whilst
FEC/Congressional relations have often been difficult because the
Commission regulates those who oversee the agency and appropriate its
budget, enforcement policy has been pivotal in determining the nature of
that relationship. Although the FEC budget has grown quite
significantly, it remains one of the smallest agencies in the Federal
government. Workload has outpaced this budgetary growth and Congress has
kept a tight rein on staffing levels, especially in the Office of the
General Counsel, which is responsible for enforcement. Two periods of
FEC/Congressional conflict are identified. The first took place in the
late 1970s and early 1980s and the second, which was more defining,
started in 1994 and continued for approximately five years. As the
Commission became more effective and vigorous in its enforcement
efforts, levying significant fines, litigating against conservative
groups and issuing new rules governing how candidates might spend their
campaign contributions, so Congress struck back against the Commission.
Auditors were despatched to investigate the agency in 1995 and 1998,
budgetary policy was used as a tool to hobble enforcement and senior
staffs were targeted for removal. However, more recently, Congress and
the FEC have been enjoying a much more amicable relationship as
enforcement policy has evolved into a more Congressionally acceptable
model and new Commissioners more closely aligned with Congressional
thinking have been appointed to the agency. Consequently, the thesis
argues that the Commission has been gutted from within. Cautionary
litigation and low impact programmes like administrative fines and ADR
appear to be the future as far as enforcement is concerned. However, the
OMB has also undermined the Commission\'s ability to enforce the law by
habitually refusing to support the agency\'s budget requests. On some
occasions, the amount the OMB has been willing to support has been so
far below that requested, Congress has appropriated funds in excess of
the Administration\'s figure. Therefore, the chapter discusses the
Commission\'s budgetary history through the interplay of budget requests
made, OMB response and the final Congressional appropriation. The
chapter concludes by making some observations about how enforcement has
changed and how it may change in the future.

[Research Methods]{.underline}

Each chapter presents its own set of particular methodological
challenges. For example, attempting to establish a historical record of
enforcement is problematic for two reasons. Firstly, whilst authors have
discussed the early origins of campaign finance reform, often alluding
to its genesis in the mid-nineteenth century, little has been written on
the enforcement of these laws. Secondly, despite numerous laws on the
statute book, enforcement was largely a token affair. In the early part
of the 20th century the enforcement of disclosure was minimal and
reports were rarely kept for any length of time before being destroyed.
The law contained numerous loopholes and neither the courts nor the
executive appeared willing to support enforcement. Therefore, the widest
possible varieties of sources needed to be accessed in order to build a
valid historical record. For example, in addition to the more
conventional secondary sources like books, legal journals, newspapers
and internet-sites, Congressional hearings and court cases also prove
invaluable primary sources.

The performance assessment also raised a number of difficulties.
Firstly, few agreed on what the FEC should be doing. Some argue that the
agency should be a disclosure organisation, focusing on placing data on
the public record in a timely manner, and that it should do that task
better. Others argue that it should be more active in enforcing the
prohibitions on sources of funding, should focus on enforcing
contribution limits and should search out and investigate more
allegations of wrongdoing. Therefore, in order to avoid making arbitrary
judgements in the performance assessment it was important to focus on
what the FEC attempted to do, rather than what others thought it ought
to do. Whilst it had its limitations, the Government Performance and
Results Act 1993 provided a useful methodological framework for this
endeavour as it required agencies to set clear objectives and goals for
their core programmes. Whilst the collegiate nature of the Commission
has tended to obviate the strategic management of performance objectives
and their achievement, the GPRA helped to minimise value judgements in
the assessment and aided the clarity of its organisation.

Congressional hearings, particularly the Treasury, Postal Service and
General Government Appropriations committee, proved useful primary
sources for chapters 2, 3 and 4. Although this subcommittee determines
the size of Commission\'s budget and how that money is to be spent, it
also performs a *de facto* oversight role as the agency is praised or
chastised during the budget process. In addition, Congressional
hearings, a PricewaterhouseCoopers (1999) report, FEC internal
publications and government correspondence unavailable to the public
provided a significant contribution to the primary sources used in these
chapters.

The political finance community in Washington D.C. is both small and
specialist, probably numbering no more than twenty significant actors.
In order to aid understanding and generate the most valid study possible
it was essential to interview members of this cabal. Elite interviews as
a qualitative approach provided the best means of generating explanation
by understanding, \'by seeing through the eyes of others.\' Thirteen
interviews were conducted in Washington D.C. between 14 and 28 October
2001. FEC Commissioners affiliated to both political Parties were
interviewed along with a number of senior staffers. Interviewees
representing the public interest community included: Fred Wertheimer,
President of Democracy 21 and former President of Common cause; Larry
Noble, Executive Director of the Center for Responsive Politics and
former FEC General Counsel; and, finally, Bill Allison, Senior Editor at
the Center for Public Integrity. Both Parties' leading campaign finance
lawyers were also interviewed, Bob Bauer, who represents most Democrats,
and Jan Baran, his Republican counterpart. Other lawyers interviewed
included Alex Vogel, General Counsel at the National Republican
Senatorial Committee, and Donald McGahn II, General Counsel at the
National Republican Congressional Committee. Although the interviews
carried out reflected a plurality of political opinion, all Republicans
responded favourably to interview requests whilst few Democrats
responded at all. The transcripts used in the thesis are *verbatim*
accounts and have not been edited to aid their intelligibility or to
conform to the prescriptive rules of English.

Whilst the FEC has contributed to weak enforcement, especially in
high-profile cases or controversial areas of law, the agency is only one
of a number of factors that have led to that weakness. The courts, the
executive and Congress have all undermined the effectiveness of
enforcement. Although Democracy 21 have called for the abolition of the
FEC in their 2002 report, doing so would not necessarily solve the
\'problem\' of weak enforcement. A change in the administrative
apparatus would not alter the way all three branches of government
hobble the enforcement process.

###### CHAPTER 1

**[U.S. Campaign Finance Regulation]{.underline}**

**[An Historical Introduction]{.underline}**

On March 27, President George W. Bush signed the Bipartisan Campaign
Finance Act 2002 (BCRA). Although the new law will undoubtedly shape the
nature of this policy area for the foreseeable future, it is not
discussed here because enforcement is the central focus of this thesis.
As the BCRA did not govern the conduct of the November 2002 elections
and the Federal Election Commission has yet to fully complete the
rule-making process, judgements about the effectiveness of the reform
measure would be supposition. However, some introductory comments and a
summary of the BCRA are set out in appendix F.

The twentieth century saw an impressive array of campaign finance laws
added to the statute book. Six of these laws provided a central
framework for the regulation of campaign finance at the Federal level.
The 1907 Tillman Act made contributions from national banks and
corporations illegal. The 1910 Federal Corrupt Practices Act mandated
that those campaigning in U.S. House elections had to make certain
financial disclosures. This Act was amended and expanded in 1911 to
include disclosure mandates for the U.S. Senate and introduced
expenditure limits for both Chambers. The 1925 Federal Corrupt Practices
Act made disclosure requirements stricter and revised expenditure
limits. All candidates were mandated to file disclosure reports with
their respective Congressional officers, either the Clerk of the House
or Secretary of the Senate. The Federal Election Campaign Act 1971
contained the familiar disclosure and expenditure limits yet also
contained provisions to reduce the advantage wealthy candidates had over
their competitors. Large contributions from a candidate's family were
proscribed and greater electoral equality was fostered by placing
expenditure ceilings on communications media. The Federal Election
Campaign Act 1974, technically an amendment to the 1971 Act,
subsequently amended in 1976 and 1979, was the most comprehensive bill
passed during the twentieth century. It contained spending limits on
presidential and Congressional elections, mandated a rigorous if
burdensome disclosure system, set up a limited public funding system and
established the FEC, a multifunctional agency responsible for
administering the Act.

Political scandal and tainted elections have generally motivated this
legislative development.[^3] Many view the reform process as a genuine
attempt to maintain the integrity of the electoral process, restoring
health to the nation's political culture. Moralistic, egalitarian and
ethical motivations can drive reformers to re-establish a common
standard of financial behaviour, injecting greater probity and
transparency into democratic politics.[^4]

A number of powerful Congressional critics have resisted these reforming
urges. Whilst First Amendment Republicans have generally been the most
vocal opponents of campaign finance law, some have been Democrats. For
example, the best known of these was Wayne Hays (D-OH). Wayne Hays
chaired the House Administration Committee 1971-1976, the Democratic
National Campaign Committee and was also chief fund-raiser and leading
campaign finance policy maker. Reform opponents often occupy positions
with party-political or financial responsibility. Legislation affects
the Parties differently, as they tend to raise their campaign finance in
different ways, and from different sources. Therefore, opposition to a
law, or a particular provision of it, takes on an instrumental, partisan
character. However, once the tide of reform looks inevitable, many play
the reform game, trying to shape the legislation to their advantage or
at least make it as electorally benign as possible.[^5] One might argue
that even this process of reform serves more of a symbolic function
rather than a utilitarian one, as an enforcement malaise often continues
unhindered by any new statutory vision.[^6] Before the creation of the
Federal Election Commission,[^7] Congress was largely responsible for
supervision and administration of the law. This self-regulation
generated public cynicism, as the law was rarely enforced and often
contained vague provisions and other loopholes, which rendered it
meaningless.[^8] Later attempts by Congress to emasculate the intent of
the law have often relied on its confirmation, oversight, budgetary, and
political powers. These formal and informal methods have enabled
Congress to exert macro and micro pressures on the enforcement process.
Additionally, the executive has also contributed to a *laissez-faire*
enforcement scenario, either institutionally, through prosecutorial
inertia at the Department of Justice,[^9] through appointment
power,[^10] through the Office of Management and Budget (OMB), or
through its own non-compliance and avoidance of the law during election
campaigns.[^11] Both democratically elected branches of government have
been able to use their constitutional authority of direction and control
over the bureaucracy as a cloak to legitimise their hobbling of the
enforcement process. Furthermore, although Congress has been most active
in ensuring a permissive regulatory environment, the courts have also
emasculated campaign finance statutes through judicial review.[^12]

Three models of democracy have generally underpinned attitudes towards
enforcement. The first is the idealist or moralist model, whose most
ardent supporter has been the public interest advocates who are often
based in Washington D.C. and the K Street corridor in particular.[^13]
They usually equate special interest money with political corruption.
These watchdog groups have campaigned for rigorous enforcement,[^14]
independent regulators, and their attitude towards electoral politics
has favoured equality of outcome. The second view or democratic model
advocates a far more permissive regulatory environment. It relies on
disclosure to deter *quid pro quo* relationships and ethically
questionable behaviour. The proactive citizen, exercising their
political judgement at the ballot box and responding at least in part to
the disclosures made, largely takes the place of the regulator by using
their political judgement. Finally, the proceduralist model tends to
reject both of the more ideological approaches and reflects the belief
that America is an unequal society and whilst it is desirable that it
remain so, politically, all should 'play by the same rules of the game.'
Therefore, the regulators\' legitimate role is one of impartial umpire,
applying universal rules to unequal regulatees. Historically, all three
models have had an influence on political finance regulation and its
enforcement.

Violations of campaign finance law tend to fall into two generic types.
The first are substantive violations, either wilful, or non-wilful, and
might include breaking contribution and expenditure limits or receiving
and spending prohibited funds from corporations, banks, or labor unions.
These offences have a *'malum in se*' character, having the potential to
corrupt democratic politics. The second type of violation involves
breaking disclosure mandates, and may involve failure to report, late
filing, or inaccurate disclosures. Cain and Lochner describe these
violations as less serious, in that they posses a *'malum prohibitum*'
character, something unlikely to breed corruption.[^15] However, any
discussion of enforcement must include *'malum prohibitum'* offences, as
they deprive the electorate of the necessary tools to make informed
democratic choices and make *'malum in se'* violations much more
difficult to detect.

# 

# Early Attempts At Reform: The Tillman Act 1907

The 1904 Presidential election was to serve as a catalyst for the
introduction of campaign finance reform. The losing candidate, Democrat
Judge Alton Parker, had relied on many small donations to fund his
campaign. Yet Theodore Roosevelt, the Republican candidate and incumbent
President since the assassination of McKinley,[^16] solicited a small
number of large donations from corporate interests.[^17] Parker accused
Roosevelt of profiting from big Corporations and Trusts who were
interested in obtaining government favours. More specifically, an
article that appeared in the *New York World* that October provided fuel
for Parker's attack.[^18] The newspaper made allegations concerning the
Bureau of Corporations, a new regulatory body designed to regulate
Trusts. Its remit was to investigate practices and initiate prosecutions
where necessary. However, Roosevelt moved George Cortelyou, its Bureau
Chief, to the post of Chairman of the Republican National Committee.
Once appointed, Cortelyou became responsible for raising finance for
Roosevelt's re-election campaign. Joseph Pulitzer, who penned the
article, alleged that the huge corporate donations that were coming into
the Republican coffers were attempts to buy protection from future
prosecutions. After reports of a meeting involving Harriman, Frick, and
a small number of others, who had allegedly agreed to underwrite
Roosevelt's electioneering costs, Parker unwisely accused Roosevelt of
corporate blackmail. Roosevelt easily defended himself against Parker's
accusations, and denied any *quid pro quo* arrangements with business.
However, Roosevelt failed to deny that corporate donations had been
received, many of which were either solicited by Roosevelt directly or
indirectly through Cortelyou.[^19] A number of related investigations
conducted by business regulators and grand juries kept disparaging
rumours about Roosevelt's campaign finances in the public arena.[^20]
Although 'muckrakers'[^21] sometimes fuelled this criticism, Roosevelt
was astute enough to keep the majority of stories out of the public eye
by cultivating a good relationship with the press.[^22] Roosevelt was
also able to read public feeling and respond effectively and
successfully to it through promoting reform.[^23] Whilst his reforming
urges were popular, they were born of compromise and usually led to an
accommodation with powerful financial interests. In light of the
concerns about the 1904 election, he supported the passage of the
Tillman Act.[^24] This prohibited corporations and national banks from
contributing to Federal election campaigns. It read:

> It shall be unlawful for any national bank, or any corporation
> organised by authority of any laws of Congress, to make a money
> contribution in connection with any election to any political
> office.[^25]

Penalties under the Act's provisions were essentially aimed at
corporations and corporate officers, not Parties, committees, or
candidates. Corporations could be fined up to \$5000, and corporate
officers or directors could be fined up to \$1000 and imprisoned for up
to one year for knowingly consenting to an illegal contribution.[^26]
However, the battle to pass a more ambitious law that contained
disclosure mandates was defeated in the Senate despite support from the
National Publicity Bill Organisation.[^27] The Tillman Act failed to
contain any disclosure provisions[^28] and was routinely ignored by
corporate business interests. As no enforcement mechanism had been
established to enforce the law, its deterrent effect was minimal.[^29]
In order to evade the nominal scrutiny that might be attracted by
corporate contributions, company executives were awarded salary raises,
on the understanding that the net increase was to be donated to the
institutions\' preferred party, candidate, or committee. Additionally,
as the law did not proscribe wealthy individuals who might own
corporations from making large donations, a strategy of disguising
corporate gifts soon developed.[^30] All legislation designed to
regulate powerful interests was essentially modest and often contained
loopholes. Yet politicians like Roosevelt followed a strategy to
maximise the political capital generated by passing such legislation.
Firstly, he would tap into or provoke concern about an issue or problem.
Secondly, this was invariably followed by fierce campaigning on behalf
of a legislative measure, despite a conspicuous lack of opposition to
it. Finally, when legislation was passed, as Hugh Brogan commented, 'the
ballyhoo which surrounded it, convinced everyone that something
wonderful had occurred.'[^31] Despite the Tillman Act's many loopholes
and the lack of an enforcement mechanism, there was also another reason
why it was not taken seriously: its constitutionality was in doubt.

**[Constitutional Uncertainty: *U.S. v United States Brewers\'
Association* (1916)]{.underline}**

In *U.S. v United States Brewers\'* *Association*,[^32] the plaintiff
claimed that the Tillman Act not only infringed free speech, but that
Congress lacked the authority to regulate elections that included the
selection of presidential electors. Constitutionally, they argued that
this was a matter for the individual states, as electors were state
officers.[^33] Article 2, section 2, of the U.S. Constitution sets out
that 'Each state shall appoint, in such a manner as the legislature
thereof may direct, a number of electors, equal to the whole number of
senators, and representatives, to which the state may be entitled in the
Congress.' Similarly, prior to the seventeenth amendment, there was
doubt as to whether the statute was able to proscribe corporate
contributions to U.S Senate campaigns. It was not until 1913 that
Senators became directly elected. Prior to this, Senators were selected
by state legislatures.[^34] Article 1, section 3, states that 'The
Senate of the United States shall be composed of two senators from each
state, chosen by the state legislature thereof.' Thus, these three
issues, free speech, Presidential electors, and Senate elections all
undermined the willingness of those responsible for enforcement to bring
violations before the courts.[^35]

Although the U.S. Court for the Western District of Pennsylvania upheld
the constitutionality of the statute in *U.S. v United States Brewers\'
Association*, it failed to rule on or resolve the other constitutional
issues at stake. The opportunity to obtain a definitive ruling
clarifying Congressional authority to regulate elections that involved
presidential electors was lost. The court ruled that if Congress were
later found to have exceeded its power in this regard, it would not
invalidate the whole Act, just that provision.[^36] Therefore, the lack
of an enforcement mechanism and the fact that only one case was brought
before the courts not only reflected the *laissez-faire* attitude of
many legislators towards enforcement, but also its constitutional
uncertainty.[^37]

**[Federal Corrupt Practices Act (1910) & (1911)]{.underline}**

Attempts to strengthen the law were made through the enactment of the
Federal Corrupt Practices Act 1910 and its 1911 amendments.[^38] These
were the first modern attempts at fostering a disclosure model of
enforcement,[^39] a strategy that was combined with candidate spending
ceilings.[^40] The 1910 Act also mandated that committees operating in
two or more states, i.e., committees for Presidential candidates, had to
comply with certain pre-primary and nomination expenditure limits.
Candidates and committees were required to file disclosure reports with
the Secretary of the Senate and the Clerk of the House. Further reform
was attempted in 1911, through the Rucker bill and its amendments. It
mandated that candidates make financial disclosures when competing in
primary elections. This was something especially important in states
where one party monopolised electoral success. Securing the party's
nomination became tantamount to securing victory in the general
election.[^41] However, debate was characterised by aggressive partisan
squabbles in the 62nd Congress (1911-1913), a time when the Democrats
had just regained their majority in the House. Republicans, who hoped
that tougher regulations might be unacceptable to southern Democrats,
who favoured individual state rights, countered Democratic Party
proposals with cynical ploys of 'one-upmansship'. Although the Senate
eventually passed the bill, the issue of Congressional authority over
primaries provoked fierce controversy. Senator Bailey (D-TX) argued:

> "The Constitution of the United States expressly authorises Congress
> to regulate the times, places, and manner of electing Senators and
> Representatives in Congress, but there is no suggestion in any clause
> of the Constitution that Congress has the power to regulate the party
> process by which its candidates are nominated."[^42]

Although partisan disagreement led to the passage of reform that
appeared to be tougher than either party had expected, or perhaps
wanted, Senator Bailey's words were to become prophetic a decade later.

Anthony Corrado, Professor of Government at Colby College Maine, a
leading campaign finance expert and member of the American Bar
Association, sets out and explains the improvements contained in the
1910 and 1911 Acts. In work published by the Washington D.C. based
Brookings Institution, he dedicates his comments to discussing the more
rigorous disclosure and contribution limits passed.[^43] Yet as he does
so, he fails to discuss their enforcement. The 1910 and 1911 Acts were
not enforced in any meaningful way, and consequently compliance was
negligible. The Clerk of the House and Secretary of the Senate failed to
ensure that either candidates or committees made regular disclosures.
The disclosures that were made were incomplete and inaccurate.[^44] No
central repository existed for the disclosures to be stored or accessed
and when researchers, usually newspaper journalists, did apply for
access, they faced unhelpful legislative staffers. The lack of
accessible campaign finance data and the deliberate obstructionism on
the part of some Congressional employees were anathema to the intent of
the Act. Those of a cynical disposition might argue that having
Congressional officers control access to the disclosures made was a
deliberate strategy based on parochial self-interest. Congressional
officers acted as information gatekeepers, deciding what was to be
disclosed, and to whom. Even an investigative subcommittee of Congress,
the Clapp committee, named after its Chair, Senator Moses Clapp (R-MN),
failed to gain either complete or reliable data through the existing
disclosure mechanism. Their task was made more difficult by the lack any
verification system. The committee concluded that 'abuses of the law
plagued the system of financing elections.'[^45] Contribution limits
were ignored, and the spending limits that were enforced were done so
long after the election had been held. More specifically, only one case
was brought against a successful candidate under the 1910 and 1911 Acts.
A representative from Pennsylvania, Orrin Bleakley (R-PEN), was charged
with exceeding the \$5,000 limit on expenditures. He admitted the
offence, resigned, and the charges were discontinued.[^46]

One might argue that there was no political will to enforce the 1910 and
1911 Acts. The first reason was that although the U.S. Congress was, and
still is, potentially very responsive to public pressure and could have
ensured tougher enforcement from the Clerk, and Secretary, the
electorate seemed unconcerned about the issue. For example, when stories
did appear in the newspapers, something that was quite rare during this
period, the public remained undecided on what reform measures were
appropriate. Though the public remained cynical about politicians and
their relationship with special interests, they were certainly not
outraged by the practices reported.[^47] Secondly, this democratic
silence suited politicians, as data showed that all two major Parties
were heavily reliant, if not totally dependent on, large special
interest contributions. The citizenry were just not contributing in
sufficient numbers to allow politicians to break free from their
symbiotic relationship with the wealthy. An added incentive for
politicians not to enforce the law was that the huge donations by the
super rich, like J.P Morgan, Thomas Lawson, John Archbold, the Taft
family, Dan Hanna, Cleveland Dodge, Bernard Baruch, James Hill, Henry
Mongenthau and Jacob Schiff, all flowed to incumbents.[^48] Therefore,
to enforce the existing law would cut off essential funds, without the
realistic prospect of obtaining alternative legal contributions
elsewhere. This scenario suggests that the Secretary of the Senate and
the Clerk of the House were simply paying lip service to the Act, aware
of the political realities in which they were operating. Additionally,
one needs to appreciate that the positions of Secretary of the Senate
and Clerk of the House were patronage positions, in the gift of the
majority party. Only if supported by the powerful majority party leaders
would any candidate hope to win the intra-Congressional election
process.[^49] This contributed to a situation where the supervisory
officers charged with administering the Act did not wish to antagonise
the majority party, for fear of losing their job or appearing disloyal.
Additionally, they did not wish to enforce the law against the minority
party, for fear of provoking retaliation, should electoral circumstances
change. This essentially parochial method of enforcement was to persist,
in one form or another, until Congress passed the Federal Election
Campaign Act 1974.

# Supreme Court Rules on Primaries

The 1918 Michigan Republican Senatorial primary saw Henry Ford, who also
entered and won the Democratic primary, lose to Truman Newberry. During
the election, Newberry accused Ford of being an anti-Semite and a
pacifist who had helped his son avoid military service. Although both
men had unlimited means, Newberry then went on to win a narrow victory
at the general election.[^50] However, questions, and accusations were
levelled at Newberry for breaking campaign finance law. A Congressional
investigation was convened, and after investigatory help from Ford's
agents, Newberry was indicted by a Federal grand jury on violations of
Federal Corrupt Practices Acts 1910 and 1911. He was found guilty in
March 1920, having spent close to one hundred times the permitted
limit.[^51] However, what was significant about this case was that
Newberry appealed to the Supreme Court and on May 21 1921, three years
after the election, the Supreme Court overturned his conviction.[^52]
The Supreme Court held that 'Congress did not have the authority to
regulate the primary, and nomination process.'[^53] This had a
long-lasting, cautionary effect on Congress' willingness to regulate
these activities. Congress did not attempt to regulate primary elections
again, until the passage of the Federal Election Campaign Act of 1971.
This was despite the changing balance of opinion in the court, which
gave Congress the authority to do so in 1941, through its *U.S. v
Classic* decision.[^54] A lack of political consensus about political
finance law in Congress, a complacent electorate, the reliance of
politicians on big special interest contributions, the Supreme Court
decision in *Newberry*, and the largely incestuous enforcement
arrangements, meant that the law could be ignored with impunity.

# 

# Scandal and Response

The next event to provoke campaign finance reform, was the Teapot Dome
scandal of 1922.[^55] Albert Fall, Secretary of the Interior during the
Harding administration, was involved in exclusively leasing oil fields
to Harry Sinclair, of Sinclair Oil, on a non-competitive basis. In
return, he received bribes and donations to the Republican National
Committee.[^56] The scandal was well publicised at the time, through a
Congressional committee, chaired by a relatively unknown junior Senator,
Thomas Walsh (D-MT). Although the donation was thought to have been
influential in helping Harding win the Presidency,[^57] it was not
reported to Congress, as the law failed to regulate donations made in a
non-election year.[^58] Teapot Dome provoked a strong reaction in the
American people, who now called for reform. This, coupled with the
*Newberry* decision, which emasculated the intent of previous
legislation, provoked Congress into passing the Federal Corrupt
Practices Act (FCPA) of 1925.[^59]

The FCPA 1925 either repealed or codified the legislation that had been
passed in the preceding years.[^60] Although the Act was subjected to
amendment, it provided the main statutory foundation upon which more
functionally specific legislation was built.[^61] Detailed records were
to be kept by committee treasurers of all contributions over \$100
received, and expenditures made in excess of \$10.[^62] The FCPA also
mandated that committees were to file regular reports with the Clerk of
the House of Representatives.[^63] Every candidate for House and Senate
was required to file reports with their respective Congressional
officers, Clerk of the House, and Secretary of the Senate.[^64] These
reports were to include both pre and post-election disclosures.
Additionally, provided that the state limits were not lower, a candidate
for the Senate could spend up to \$10,000, and those competing for House
seats could spend \$2,500 on their election campaigns.[^65] However,
candidates had the authority to use an alternative method of keeping
within the expenditure limits, by using a statutory rubric. Federal
candidates could spend an equal amount, calculated by multiplying three
cents by the total number of votes cast in the previous general
election. This could not exceed \$25,000 for Senate candidates, or
\$5,000 for those competing in House races.[^66] Section 310 was drafted
to combat and proscribe any attempts by candidates to promise
appointments in return for financial or in-kind support. Section 311
outlawed activities involving buying or withholding votes for money,
something similar to section 310, in that crude *quid pro quo*
agreements were to be forbidden by law. Section 313 was largely a
reiteration of the Tillman Act, as it proscribed campaign contributions
from any corporation or national bank. Institutional penalties could
result in a \$5,000 fine, with individuals being fined up to \$1,000, or
one year\'s imprisonment, or both. Finally, wilful violations of the Act
could result in a fine of \$10,000, and two years\' imprisonment.[^67]
Despite the lengthy disclosure requirements, contribution limits,
spending caps and stiff penalties for those violating the law,
enforcement of these provisions was negligible.[^68] For example,
provisions 303 through 309, which contain the bulk of the statute's
provisions, had only been the subject of one prosecution by the year
1955, thirty years after the statute was enacted.[^69] Olney also
testified before Congress in 1956, when he set out the number of
enforcement cases relating to illegal contributions from corporations,
labor unions, and national banks. From 1950-1956, 54 complaints were
received, 49 warranted investigation, 14 cases were presented to grand
juries, two indictments were obtained, and one case went to trial.[^70]
Although the Department of Justice tended not to aggregate election
offences, figures that indicated the level of enforcement for the
1950\'s were telling.[^71]

[Table1: Enforcement statistics]{.underline}

  ----------------- ----------------- ----------------- -----------------
  YEAR              COMPLAINTS        INVESTIGATED      PROSECUTED

  1952              245               139               2

  1953              92                54                1

  1954              118               UNKNOWN           56
  ----------------- ----------------- ----------------- -----------------

Source: U.S. Senate, subcommittee on Privileges and Elections: 84th
Congress, 1st session. Federal Elections Act 1955, 202.

Although these figures might suggest that some attempt was being made to
enforce the law, they were misleading. Few if any of these cases,
involved campaign finance abuse. In 1955, Olney stated before Congress
that the majority of cases in their files were of a particular
character.[^72] These violations involved vote buying and ballot box
stuffing. The Department of Justice received very few allegations
against candidates.[^73]

One reason why so few complaints were made against candidates and
committees was the result of the way enforcement officers managed the
disclosure mechanism. Firstly, the disclosure mandates contained in
sections 305-309 were only sporadically complied with, something the
Clerk and Secretary of the Senate seemed reluctant or unable to
change.[^74] Secondly, the management of and access to the disclosures
made seemed designed to discourage both inquisitive reporters and the
civic-minded layman. For example, in 1960, although staff at the House
File Clerks\' office, were described as personally co-operative, the
reports could only be accessed between 10am and 3pm, when Congress was
not sitting, and no weekend facilities were available throughout the
year. This was in contrast with state depositories, which had
traditionally provided longer business hours. Table space was limited to
two individuals, and copying of reports had to be done by hand. As the
custodians of these reports were political employees, they tended to be
mindful of the sensitivities of the Clerk, Speaker, and Minority leader.
Heard has described how conditions of access to reports, and even
hand-copying of data, could be arbitrarily restricted at times.[^75] For
example, a log existed in the File Clerks office, something that
functioned as an essential index, required for accessing individual
committee disclosures. Without knowing the name of the committee
reporting, it was impossible to gain the information required without
the log. This log was sometimes kept under lock and key, public access
being denied. On other occasions, it was shown on the precondition that
its contents would not be published in a newspaper. In the spring of
1955, when the Democrats regained control of the House, all reports over
two years old were either burned or sold for scrap.[^76]

However, one cannot attribute failure to enforce the disclosure mandates
contained in the 1925 Act solely to Clerk of the House and Secretary of
the Senate. Herbert Alexander commented that 'no system existed for
ferreting out violations.'[^77] The responsibilities incumbent on the
Clerk and Secretary were nominal.[^78] For example, under the 1925 Act,
they merely compiled a list of candidates and elections. This was then
compared to the disclosures made. If mandated disclosures were not
forthcoming, a reminder was issued, highlighting compliance
responsibilities. However, by law, the respective Congressional Officers
were not required to issue reminders or contact the Department of
Justice.[^79] When the Department of Justice was criticised for their
prosecutorial neglect, they deflected criticism by placing the onus on
the Clerk and Secretary. Thus, up until the late 1960s, the absence of
an independent enforcement mechanism, parochial disclosure and publicity
arrangements, and immobilism at Justice, might explain why so few cases
were brought before the courts.

As the decade came to a close, this *laissez-faire* enforcement ethos
appeared to be changing. In 1969, the Nixon administration successfully
pressed charges against corporations who had illegally made
contributions during the 1968 campaign.[^80] However, the motivation for
these charges was unclear, as Nixon generally opposed political finance
regulation, vetoing the 1970 Political Broadcast Act.[^81] In 1969, the
new Clerk of the House and former Representative, W. Pat Jennings
(D-VA), referred 65 House candidates to the Justice department for
failing to file reports. He also referred 42 others for late filing. The
Department of Justice was characteristically unwilling to act on
Jennings\' referrals. Justice ruled that there was no precedent during
the Act's 45-year history for prosecuting those breaking disclosure
mandates.[^82] The Clerk of the House and Secretary of the Senate
disclosed that twenty-five candidates had failed to file any reports
after participating in the 1970 Congressional elections. A Department of
Justice spokesman said that he was aware of the apparent violations but
had no comment to make on whether prosecutions were planned. Although
attempts to enforce the law were frustrated by Justice,[^83] what is
more surprising is that any violations occurred at all given the
loopholes in the law.

President Lyndon Johnson said of the 1925 Act, \'campaign finance law
during this forty-six year period was more loophole than law\...inviting
evasion and circumvention.\'[^84] These loopholes were created by legal
definitions of terms like 'election' and 'political committee.' Others
arose from the large number of products and services excluded from the
expenditure limits. Firstly, in response to the 1921 *Newberry v United
States* decision, the Act failed to regulate primary elections. The Act
defined an election as follows:

> \'The term \'election\' includes a general election or special
> election, and in the case of a Resident Commissioner from the
> Philippine Islands, an election by the Philippine Legislature, but
> does not include a primary election, or convention of a political
> party.'[^85]

Earl Sikes, writing in 1928, described the Act's definition of election
\'as a glaring weakness.\'[^86] In 1953, the Senate subcommittee on
Privileges and Elections concluded that:

> 'The failure of the Federal Corrupt Practices Act to include Primaries
> makes a mockery of the entire law. Legislation must be realistic to be
> effective. In many states where one Party is dominant, winning the
> party nomination is tantamount to election. It is, under the present
> law, possible for large sums of money to be spent in a primary by a
> candidate or his committees which will accrue to his benefit in the
> general election, but which are not reportable under the Federal
> Corrupt Practices Act.'[^87]

When the Act was initially drafted, taking Primaries out of the
regulatory framework seemed pragmatic.[^88] However, in *U.S. v Classic*
(1941), the Supreme Court ruled that Congress did have the authority to
regulate primaries. The court ruled that:

> 'Unless the constitutional protection of the integrity of elections
> extends to primary elections, Congress is left powerless to effect the
> constitutional purpose, and the popular choice is stripped of
> constitutional protection ...Congress' power thus has to be utilised.'
> [^89]

Despite this ruling, Congress remained cautious about regulating
primaries, preferring to maintain the *status quo*.[^90] Secondly,
Congress chose to define what constituted a \'political committee\' in a
way that facilitated attempts to evade the intent of the law.

> 'The term \'political committee\' includes any committee, association,
> or organisation which accepts contributions or makes expenditures for
> the purpose of influencing or attempting to influence the election of
> candidates or presidential or vice-presidential electors (1) in two or
> more states, or (2) whether or not in more than one state if such
> committee, association, or organisation (other than a duly organised
> state or local committee of a political party) is a branch or
> subsidiary of a national committee, association, or
> organisation.'[^91]

This definition quickly led to the practice where candidates, and other
groups, established multiple intra-state campaign committees, which took
them out of the regulatory framework. Intra-state committees could
therefore campaign on behalf of a candidate, spending unlimited,
undisclosed sums, whilst the beneficiary denied knowledge and
responsibility.[^92] Alexander commented that it was not unusual for
contributions from one individual to reach \$100,000, which would be
dispersed amongst multiple unregulated committees.[^93]

Thirdly, the definition of political committee and the consequent
proliferation of multiple intra-state committees also facilitated
evasion of contribution and disclosure mandates. For example, Section
305 (1) required treasurers to make detailed disclosures to the Clerk of
the House on contributions of \$100 or more. This resulted in large sums
being contributed in multiples of \$99, all of which remained
undisclosed.[^94]

Finally, Section 309 (c) allowed candidates to make expenditures on
certain items which did not count against their disbursement limits.
These unregulated campaign expenditures included the costs of
travelling, subsistence, postage, stationery, writing, printing (other
than for billboards or in newspapers), distributing letters and
circulars, posters, telegraph and telephone services.[^95] Therefore, a
nominally experienced candidate could attribute all campaign
expenditures to one or other of these provisions. Candidates, when sent
reminders concerning their disclosure reports by Congressional Officers,
could legally reply that they had no intention of complying with the
reporting mandates, as they had not spent one cent on their campaigns.
[^96]

The 1925 Act was an enforcement failure. The lack of an independent
enforcement structure, a disinterested Department of Justice and
loopholes in the law all contributed to its lack of practical utility.
Although the Act was largely ignored or circumvented, Congress did make
its own limited attempts to maintain the integrity of the electoral
process. Article 1, section 5, of the U.S. Constitution sets out that
Congress shall be the judge of elections, returns and qualifications of
its own members. This authority was used by Congress to conduct
investigations into particular House and Senate races. In light of the
lack of traditional legal enforcement, this method of less formal,
intra-Congressional investigation seemed to have been the preferred
strategy for dealing with alleged violations.[^97] For example,
investigations might have been initiated by complaints or after the
notification of a contested election result. One early high-profile
investigation concerned the Senate election of Mr. Frank L. Smith,
Republican candidate for Illinois, and Mr. William S. Vare, Republican
candidate for the state of Pennsylvania. From December 1926 until March
1927, much time was spent discussing the findings of the Reed
Committee.[^98] This investigation centred on breaking expenditure
limits and, in the case of Smith, receiving prohibited
contributions.[^99] After fierce debate on the interpretation of Article
1, section 5, of the Constitution (loose versus strict constructionism),
both men were denied their seats, despite their successful
elections.[^100] The Norris resolution described Smith and Vare\'s
expenditures as:

> \'Contrary to sound public policy, dangerous to the perpetuity of free
> government, harmful to the dignity and honour of the Senate, and
> taints with fraud and corruption their credentials, so that they are
> not entitled to membership of the Senate.\'[^101]

Some of the other investigatory committees included: the Steiwer
Committee,[^102] which examined the financing of the 1928 campaign; the
Caraway Committee,[^103] which investigated non-party committees; and
the Nye Committee,[^104] which investigated senatorial candidates in
1930.[^105] Other, more ad-hoc, investigations included the 1941 case of
William Langer[^106], and the 1947 case of Herbert O\' Conor.[^107] This
informal method of regulation has been heavily criticised, especially
among academics. For example, Hugh Bone of the University of Washington
commented \'sporadically created special committees on campaign
expenditures, or subcommittee attention, is inefficient, and
unsatisfactory.\'[^108] Cortez Ewing of the University of Oklahoma
commented \'committees are not usually effective law-enforcement
agencies. As Lloyd George once exclaimed,\' \'You cannot fight a war
with a Sanhedrin at the head.\'[^109] These hearings rarely led to
individuals being censured[^110] or denied their seats.[^111] Therefore,
this would suggest that, despite attempts by Congress at a system of
informal regulation, its effectiveness was marginal. Thus formal and
informal approaches to enforcement of the 1925 Act were found seriously
wanting.

**[Legislative Politics Leading To The Passage Of The FECA
1971.]{.underline}**

**[Senate Reform Attempts at Creating an Independent Enforcement
Authority: Federal Elections Commission]{.underline}**

The Federal Election Campaign Act 1971 was very much a product of
policy, process and personality. The Senate debate began on their reform
Bill, S382, on July 21 1971. An amendment to its reform bill proposed
the establishment of an independent Federal Elections Commission. The
amendment was passed by 89 votes to 2. The Senate called for a
six-member bipartisan commission, evenly divided between Democrats and
Republicans.[^112] This would end the practice of Congress controlling
the supervision of campaign finance law, a practice described by William
Frenzel (R-MIN) as 'tantamount to putting the fox in charge of the
chicken coup.'[^113] Proposals for an independent enforcement authority
had been made before, but failed to come to fruition. For example, a
bill had been introduced in 1928, proposals were made in 1962, through
J. F. Kennedy's Commission on Campaign Costs,[^114] and again, in 1970,
by the Republicans.[^115] Some Senators might have been motivated to
pass this reform in order to enhance their reputations, yet some may
have been genuinely dissatisfied with the poor record of enforcement
under the existing arrangements. Others might argue that the Senate
tended to be more willing to make radical campaign finance reforms, as
they had less difficulty in raising finance than House candidates, and
therefore, more rigorous enforcement of disclosure and other
prohibitions might have affected them less. Others, of a more cynical
disposition, might have surmised that Senators knew that proposals for
an independent Federal Elections Commission would have been opposed in
the House, making their amendment an irrelevance. Despite the difficulty
in ascribing reliable motivations for the amendment, bipartisan support
for it held in the Senate. Senate Republicans tended to oppose spending
limits, and Democrats usually opposed the idea of an electoral
commission, and were often unenthusiastic about strict disclosure
mandates.[^116] Notwithstanding, at the time, Senate Democrats were not
as opposed to the Commission as they might have been, as their candidate
committees were able to raise and spend more than their Republican
rivals.[^117]

**[House Reform]{.underline}**

After the failure of one bill, sponsored by Wayne Hays (D-OH), powerful
Chairman of the House Administration Committee, the Brown-Frenzel Bill
was adopted.[^118] Clarence J. Brown (R-OH) and Bill Frenzel (R-MIN)
sponsored HR 11060. It was a hybrid, combining the reporting and
disclosure mandates sponsored by Brown and Frenzel with the media
spending limitations introduced by Torbert McDonald (D-MASS), Chairman
of the Subcommittee on Communications and Power. On November 30, when
the bill was considered on the floor of the House, Wayne Hays, a
long-time opponent of reform, offered an amendment.[^119] Hays called
for the Secretary of the Senate, Clerk of the House, and Comptroller
General to be substituted for the independent Federal Elections
Commission. He was influential, as the provision of determining who
should supervise the legislation, which came under titles IV of the Act,
fell under his jurisdiction, as Chair of House Administration. The Hays
amendment was passed, 79 to 52, and the bill passed 373 to 23, despite
opposition from moderate Republicans and liberal Democrats.[^120] The
substance of the final bill was decided upon in Conference Committee,
where strategic negotiation reconciled the differences between Senate
and House versions.

# Conference Committee

The Conference Committee was a complicated affair, especially where
House conferees were concerned. The negotiations were held over two
days, and provisions I to V of the House bill were allocated to
different House Committee jurisdictions. Hays, as Chair of House
Administration Committee, was perhaps the most influential House
conferee, and he was joined by Harley Staggers (D-W-VA), Chair of
Interstate and Foreign Commerce Committee. Staggers had House
jurisdiction over titles I and II, which related to media spending
limits, and Hays had jurisdiction over title IV, which related to
enforcement. The first day of negotiations between House and Senate
conferees aimed to resolve the issue of spending limits on mass
telephone banks and mass mailings. The White House, Senate, and House
Republicans were fiercely opposed to restrictions, and were determined
to maintain their aggregate spending advantage. However, Hays and
Staggers remained steadfast in their opposition to any liberalisation of
the spending limits. Before a vote was taken, Hays called a private
caucus meeting and made a proposal. He would agree to delete the mass
mailings from the spending limits, if the Senate would delete their
proposal for a Federal Elections Commission. The Senate attempted to
negotiate further, but Hays remained adamant. Senator Scott, a keen
advocate of independent enforcement, was said to have 'wilted like a
flower' when he realised that Hays was likely to achieve his goal. After
threatening to scuttle the whole bill, privately saying that 'he didn't
give a dam about the bill and would get up and walk out,' the Senate
conferees reluctantly agreed to his demand.[^121]

By maintaining the tripartite system of supervisory officers,
legislators with campaign finance raising and national committee
responsibilities, like Hays, could continue to manipulate the
enforcement process. Hays kept Jennings, the House Clerk, on an
inadequate budget, and often resorted to name calling and other bullying
tactics at committee hearings.[^122] Hays commented, 'I have a fixation,
you might call it, against unnecessary commissions, and I think that
this is another unnecessary commission.'[^123] Yet again, Congress was
unwilling to allow an external body to enforce the campaign finance laws
that it had passed.[^124] Hays opposed setting up the Commission for a
number of reasons, but he was particularly concerned not to allow
President Nixon to appoint members of an agency that would regulate
Democratic Party finances. Bertram Podell (D-NY), a supporter of Hays,
commented that 'the worst thing we can do is to relegate the activities
of members of this House to an independent commission appointed by a
political individual, the President of the United States.\' Hays was
also concerned to avoid increasing the number of campaigns subject to
litigation. He commented 'I suspect that if this becomes law, we would
have practically every election in the country tied up in the courts,
before, during, and after the elections.[^125]

**[Modern Reform: The Federal Election Campaign Act 1971]{.underline}**

The Federal Election Campaign Act 1971[^126] was signed by President
Nixon on February 7 1972, and became law sixty days later, on April 7.
The effective date fell in the middle of the 1972 presidential and
Congressional races, which reduced its potential impact. Some
candidates, who were determined to use the inadequacies of the 1925 Act
as a cloak in order to hide their questionable fund-raising activities
from scrutiny, engaged in frantic activity before the April 7
deadline.[^127]

The 1971 Act was unusual in that it was passed by Congress, and signed
into law, prior to scandal.[^128] The historic Watergate hearings into
the many abuses of President Nixon\'s Campaign to Re-elect the President
were not to take place until the summer of 1973.[^129] Therefore, it
might be helpful to explain some of the reasons why reform occurred.
Firstly, advances in technology were increasingly being utilised in
political campaigning, something that also increased the value of money,
as these services could be purchased.[^130] The frequent use of jet
aeroplanes, television, computerised direct mail advertising, and
polling all meant that campaigns became more sophisticated. Although
technology could be a great benefit to well-financed candidates, it
drove up spending very quickly. For example, in 1964, total campaign
spending was estimated at \$200 million; by 1968, this figure had
reached \$300 million.[^131] Therefore, the 1971 Act attempted to
control aggregate costs, by placing limits on certain media
expenditures. Secondly, there was a growing perception that politics was
becoming the exclusive preserve of the rich.[^132] For example,
Representative Richard Ottinger (D-NY) spent \$1.9 million on his 1970
Democratic Senatorial Primary, most of which came from his family.[^133]
Generally, this was thought unhealthy in a modern democracy,[^134] more
specifically, as it tended to drive up spending and costs for all
candidates.[^135] Therefore, Congress was minded to place limits on the
campaign use of personal fortunes. Thirdly, the National Committee for
an Effective Congress, a public interest advocacy group, made efforts to
aid the passage of the 1970 Political Broadcast Act,[^136] something
that was vetoed by President Nixon. This veto[^137] made Congress
determined to pass more comprehensive legislation in the 92nd
Congress.[^138] Finally, those opposed to the 1971 Act, realised that
making a public stand against reform might prove politically
unwise.[^139] Thus, rising election costs, criticism of wealthy
candidates, Nixon\'s veto of previous legislation, and the relative
silence of reform opponents all helped ensure that the 1971 measures
were passed.

The FECA 1971 contained a mixture of prohibitive and liberal measures.
It aimed to discourage large contributions from individuals by passing
strict disclosure mandates.[^140] It required the disclosure of
contributions by political committees of more than \$1,000, required
disclosure of contributions by individuals of more than \$100, limited
expenditures on media communications, and limited contributions from a
candidate to his own campaign, along with those from his/her
family.[^141] Yet it also codified and legitimised the activities of
political action committees.[^142] Additionally, it repealed the FCPA
1925, which had contained contribution limits.[^143]

**[Establishment of the Administrative Apparatus]{.underline}**

Enforcement authority was to be vested in a tripartite system of three
supervisory officers. In keeping with previous legislation, Congress was
to retain broad control over enforcement. On March 24 1972, the
Comptroller General, Elmer Staats, established the Office of Federal
Elections within the General Accounting Office. Staats, supported by
Office Director Phillip Hughes and Fred Thompson, who acted as Deputy
Director, became the enforcement officer for Presidential and Vice
Presidential races. Title III of the Act awarded the Comptroller General
responsibility for monitoring compliance with disclosure, contribution,
and expenditure mandates. Additionally, the Comptroller General was
required by title I to issue regulations and monitor the use of media
communications by all Federal candidates, in order to ensure compliance
with expenditure limits. Finally, section 308 (c) of the Act required
the Comptroller General to act as a national clearing-house on the
administration of elections. This was designed to promote information
and facilitate campaign finance research.[^144] The Clerk of the House,
W Pat Jennings, and Secretary of the Senate, Francis Valeo, were
designated as the other two supervisory officers for Congressional
elections. Each supervisory officer had the authority to conduct
investigations and audit committees. Section 308 of the Act instructed
supervisory officers to report 'apparent' violations to the Criminal
Division of the Department of Justice. They were also charged with
assessing the validity of citizen complaints, and having to determine if
there was 'substantial' reason to believe that a violation had occurred.
The Attorney General retained discretionary authority over the
initiation of all prosecutions.[^145] Therefore, the historical pattern
of enforcement being dependent on the willingness of Justice to
prosecute continued. The Act also failed to set out common practices and
standards of enforcement. These might have acted as a common guide or
benchmark for statutory officers to follow.[^146] Despite these
weaknesses, it was the Comptroller General, supported by a well-staffed
and well-funded bureaucracy, who would develop a reputation for able and
rigorous administration of the Act.[^147] Alexander argued that the GAO
had a reputation for being the Federal Government\'s elite corps of
accountants. This led the mass media to give more publicity to their
actions and reports, something that enhanced their power and status.
Finally, the Comptroller General and his staff were insulated from the
political pressures sometimes exerted on Congressional officers.[^148]
This accorded them greater independence and latitude.

The GAO adopted a voluntary compliance ethos in 1972, becoming more
rigorous in its enforcement in later years. As the regulated community
had claimed ignorance of political finance regulation in the past, the
GAO was determined to secure as much awareness, publicity and support
for the Act as possible. In April 1972, 8,000 information packs were
sent out, which contained copies of the Act, the Comptroller General's
regulations, registration, and reporting forms. Identifying, educating,
and bringing those involved in Presidential campaigns under the Act
proved a particularly difficult task, as hundreds of packs were returned
marked 'not known,' 'deceased,' or 'not forwardable.' Although the
recipients had been identified by mailing lists from state and county
chairman, many had not been involved in politics for years. Therefore,
in terms of the disclosure mandates, substantial compliance was deemed
to be acceptable, preferring not to seek prosecutions. Other reasons why
the GAO did not apply the law as vigorously as they might have included
the fact that some ambiguities still existed in both the law and
regulations and many committees were still confused about their
reporting obligations.[^149] Additionally, although the law held
committee treasurers legally responsible for disclosure accuracy, many
were either subordinate employees, unfamiliar with the law, or were
honorary figureheads, essentially amateurs.[^150] However, this period
of grace and flexibility changed in 1973.[^151] The GAO developed
guidelines on what they considered were the less serious violations that
could be remedied through the submission of a revised report and
violations that warranted referral to the Attorney General. Examples of
minor violations included failing to report changes in organisational
personnel, the name of a new treasurer, or certain errors in reporting
expenditures, and receipts. Examples of more serious violations,
justifying a criminal referral, included accepting corporate
contributions from foreign nationals, or making contributions in the
name of another.[^152] The GAO ensured compliance with the Act by
conducting a nation-wide programme of audits, which was supported by the
investigation of citizen complaints.[^153] The Office of Federal
Elections then published reports on audits and citizen complaints that
resulted in a referral. Although the GAO sent most referrals to the
Department of Justice, they did, on occasion, make referrals to the
Internal Revenue Service, state Attorney General\'s and the Federal
Communications Commission.[^154]

From June 5 1972 to December 16 1974, the GAO audited 420 committees. Of
these, 49 were not found in full compliance, 260 were found to have
committed technical violations, and 111 had committed violations serious
enough to warrant a criminal referral. The Parties were equally culpable
in terms of the number of referrals they received: Democrats received
12, the Republicans 13. Yet Republican committees were found to have
committed over 50% more technical violations than the Democrats. The
Democrats had committed 40 disclosure violations, compared with 65
Republican. Presidential committees, campaigning on behalf of George
McGovern, the Democratic candidate, were found to have committed 36
technical violations, and attracted 42 criminal referrals. In the light
of Watergate, it was perhaps ironic that Nixon's committees committed 45
technical violations, yet only attracted 8 referrals.[^155] Labor
committees committed 15 technical violations, and received 8 referrals.
Finally, business/professional committees, were found to have committed
19 technical violations, and attracted 4 criminal referrals.[^156]

**[Administration of the Act by Congressional Officers]{.underline}**

The Clerk of the House and Secretary of the Senate had a more difficult
task than the GAO in monitoring compliance with the law, due to the
larger number of candidates and committees competing in elections. For
example, 1,700 candidates and 2,200 committees registered with the Clerk
in 1972. Additionally, the Congressional officers had to prepare for the
1974 election cycle, and also had to cope with interference from
Congressional committees. The House Administration Committee held
financial and oversight power, something that was exercised by its
Chairman, Wayne Hays (D-OH), to undermine Jennings\' capacity to enforce
the law. For example, Hays kept Jennings on a tight budget. When
Jennings asked Hays for the 1972 annual appropriation of \$399,030 for
38 additional staff, he was only granted \$156,984. Hays also ordered
that the cost of photocopying disclosure reports be increased from ten
cents per page to \$1. Hays then tried to transfer enforcement authority
from the Clerk to his own Committee.[^157] Additionally, the House
established an annual Special Committee to Investigate Campaign
Expenditures. This committee also interfered with the work of the Clerk
by carrying out its own investigations of particular violations and
preventing meritorious referrals from being sent to the Department of
Justice.[^158] Therefore, Congressional officers, especially the Clerk,
worked within particularly difficult political constraints. This
impinged on the methods adopted to implement the Act. For example, the
GAO was very open about its audit results, publishing the names of
candidates and committees along with the nature of violations. Although
the Clerk and Secretary did refer large numbers of candidates and
committees to the Justice Department, specific details were never
published. The Clerk and Secretary, unlike the GAO, chose not to
differentiate between generic violations, referring even minor technical
violations to the Attorney General. This provided legitimacy for the
non-disclosure of violations. The Clerk and Secretary claimed that
violations likely to be the subject of litigation should not be
disclosed prior to their conclusion. Additionally, they claimed that
minor offences unlikely to warrant litigation should not be disclosed
for fear of unjustly damaging a respondent\'s reputation. This strategy
resulted in the protection from public scrutiny of the incumbents who
elected the Clerk and Secretary every new Congress.[^159] Therefore the
electorate were unlikely to be made aware of technical or disclosure
violations and would never learn of substantive violations if the
Department of Justice failed to prosecute. Despite these weaknesses, the
aggregate number of cases referred was as follows: the Clerk referred
4,900 cases to the Department of Justice in 1972, a figure that rose to
6,100 cases, by 1973. 418 cases referred to Justice concerned candidates
and 779 cases involved political committees. By March 1973, Francis
Valeo had referred 565 cases to Justice. This was a particularly high
figure, as the Secretary of the Senate, in keeping with the early
voluntary compliance policy of the GAO, chose not to initiate criminal
referrals until the beginning of 1973. As a total, the Secretary
referred 1,098 cases arising from 1972 violations, 564 of which related
to late or non-filing of disclosure reports.[^160] Perhaps one of the
major difficulties in monitoring compliance with the Act, especially for
Congressional officers, was the volume of data produced. For example,
from April 7 to December 31 1972, the Clerk received 117,000 pages of
reports, the Secretary 69,500, and the Comptroller General 83,000.[^161]
Attempting close scrutiny of these reports was very difficult, if not
impossible.[^162] Congressional officers carried out their
responsibilities as effectively as they could, given the financial,
political, and practical constraints at hand. Despite the efforts of the
Comptroller General, Secretary of the Senate, and the Clerk of the
House, the tripartite system was only part of the enforcement scenario
and many other problems existed which seriously undermined enforcement
of the Act.

**[Enforcement of Communications Media Spending
Limitations]{.underline}**

The FECA 1971 aimed to control the dramatically escalating costs and
spending on mass media communications. As a central plank of the
legislation, it aimed to limit spending on radio, terrestrial, and cable
television, newspapers, magazines, outdoor advertising and automated
telephone systems. Specifically, it restricted spending on these
services to ten cents per eligible voter within the geographical area in
which the election was taking place. Additionally, candidates were
proscribed from spending more than 60% of this total on television and
radio communications.[^163] The responsibility for adherence to this
particular mandate rested with committee treasurers and the service
provider. The supplier of the advertising service had the responsibility
of obtaining a certification from the candidate or treasurer,
guaranteeing that the purchase would not break spending limits. Burke
described how the media spending limits helped to control certain
expenditures, though she also noted that total spending was not reduced
to any significant extent, as money tended to flow elsewhere.[^164]
Alexander described how media expenditures were more difficult to hide,
which made them more amenable to enforcement. Yet these supportive
comments were usually aimed at radio and television spending, not all
media communications. These expenditures on broadcast media were already
regulated by disclosure mandates enforced by the Federal Communications
Commission.[^165] The FECA proved much more difficult to enforce against
newspaper expenditures, some of which involved large sums. [^166] For
example, Larry McCoy, Assistant to the Director, Office of Federal
Elections, GAO commented:

> 'The geographic range of newspapers with their independent way of
> operating, made administration and enforcement of this requirement
> extremely difficult. There are over 8,000 daily and weekly newspapers
> in the United States, and, although we worked with the American
> Newspapers Publishers Association in an effort to inform their members
> of the legal requirements, we found many instances where they failed
> to require a candidate's certification before publishing campaign
> advertising.' [^167]

Enforcement of the print media spending limitations was a failure. Not
only did the practical difficulties of trying to regulate a
geographically dispersed and institutionally heterogeneous print media
prove to be beyond the capacities of enforcement officers, the provision
was declared unconstitutional on November 14 1973.[^168] Although the
Department of Justice took the case to appeal in the U.S. District
Court, it was to become irrelevant in the light of Watergate, and the
passage of more radical legislation in 1974.[^169]

**[Loopholes that Frustrated Enforcement of The FECA 1971]{.underline}**

The 1971 Act contained a number of loopholes that undermined its utility
and made enforcement difficult. Private clubs and other fraternal
organisations were not brought under the Act's jurisdiction, the
definition of 'candidate' was too restrictive, and the Act failed to
adequately regulate loans and familial gifts.

Firstly, social clubs exploited a loophole in the law that allowed them
to make sizeable contributions to campaigns, if they were funded from
their membership fees (dues). Although, if the donation was over
\$1,000, it would have to be reported, the law could not force the club
to disclose any of the personal details of its membership. This loophole
could be used to make large 'ghost' donations, where anonymity was
guaranteed. Secondly, the definition of 'candidate' in Title I of the
Act, relating to media spending limits, allowed individuals to campaign
and actively advance their political careers without having to comply
with spending limits contained in the Act. Candidates, therefore,
delayed their formal announcement of candidacy until the last possible
moment. Thirdly, the Act stipulated that all loans had to be reported
until they were 'terminated.' However, loans could be forgiven at a
later date, essentially written off for free, or terminated through the
repayment of a token amount. Fourthly, the restriction of campaign
contributions by a candidate's family only applied to the immediate
members. Therefore relatively close family members might still legally
provide large contributions to one another. Additionally, there was no
prohibition on candidates\' receiving loans from their immediate family.
Therefore, the third and fourth loopholes in the law essentially
emasculated the provisions designed to prevent politics from becoming
the exclusive preserve of the rich.[^170]

**[Department of Justice Enforcement Stasis]{.underline}**

One of the most serious problems with the enforcement process was that
the Department of Justice failed to act on the referrals that it
received. For example, of the 4,900 referrals received from the Clerk of
the House relating to the 1972 elections, the Department of Justice
acted upon three. The 565 cases referred by the Secretary of the Senate
also generated a similar response.[^171] The Comptroller General, Elmer
Staats, and Director Hughes, of the Office for Federal Elections,
complained about inertia at the Department of Justice after GAO
referrals were also ignored.[^172] In keeping with the historical
unwillingness of the Department of Justice to prosecute campaign finance
violations, monitoring compliance with the 1971 Act was not given
priority. For example, during the 1972 campaigns, the department of
Justice only had one full-time attorney supervising enforcement of the
Act.[^173] This lack of resources and trained staff reflected the
inherent controversy that surrounded the enforcement process. The post
of Attorney General had often become a reward for political
service,[^174] and as such, prosecuting persons from his/her own party
might seem disloyal and prosecuting the opposing party might seem
politically motivated, inviting retribution in the future.[^175] The
Department of Justice followed the rational choice scenario, either
deciding that most violations failed to warrant prosecution, or if they
did, committees were prosecuted, not individuals.

**[Origins Of The U.S. Federal Election Commission]{.underline}**

**[History Repeats Itself: Scandal and Reform, the 1970s
Scenario]{.underline}**

By 1973, a number of disparate factors contrived to forge a powerful new
impetus for campaign finance reform. The FECA 1971 proved a double-edged
sword. Its strict disclosure mandates, which had on occasions been
enforced through private civil litigation, provided a wealth of
political finance information.[^176] However, the 1972 data proved that
the 1971 Act failed in its original objective to rein in campaign
expenditure. Overall, spending had risen from \$300 million in 1968 to
\$425 million by 1972. This was an increase of more than 300% since
1952, when compared to the 56% rise in the consumer price index over the
same period. Presidential spending had been estimated at \$27.2 million
in 1960, \$38.1 million in 1964, \$56.4 million in 1968, and reached
\$94.4 million in 1972.[^177] This failure to control expenditure
through the existing legislative framework was further compounded by the
fact that the percentage of Americans willing or able to make
contributions remained relatively low.[^178] This resulted in many
candidates depending on a small number of large private contributions.
Concerns about the possible *quid pro quo* relationships brought about
by this dependency[^179] and a more general dissatisfaction with the
poor record of regulatory enforcement[^180] led to numerous groups and
interests to call for reform. Common Cause was supported in its
campaigning by the Center for the Public Financing of Elections, union
labor, National Committee for an Effective Congress, the League of Women
Voters, the Nation Women's Political Caucus, and many newspapers.
Although reforms had already been passed at state level,[^181] something
that reflected their greater responsiveness to changes in public
attitudes, Congress, more specifically, the House, remained
unenthusiastic about reform during the first session of 1973.

[**Watergate Break-in, Discovery** **and Cover-up**]{.underline}

The tide of reform became inevitable as the historic Watergate scandal
unfolded. Watergate was a Washington D.C. apartment and hotel complex.
It acted as the headquarters of the Democratic National Committee during
1972. After a number of damaging leaks concerning the activities of the
administration, a number of individuals with electoral or executive
responsibilities decided to develop a secret political intelligence
capability. Gordon Liddy, council to the Finance Committee to Re-elect
the President, proposed a number of ambitious, illegal, and essentially
foolhardy plans during the spring of 1972.[^182] His third proposal,
costing \$250,000, was authorised by John Mitchell, the Attorney
General, and former Nixon campaign manager, and Jeb Magruder, deputy
director of the Campaign to Re-elect the President. The plan was
code-named Gemstone[^183]and involved breaking into the Democratic
National Committee's headquarters in order to place listening devices in
telephones and photocopy private documents. The group of Cuban-Americans
employed to carryout Liddy's plan were given the code name the
'plumbers' as their remit was to stop 'leaks.'[^184] The first two
attempts at gaining entry to the building failed.[^185] For example,
security staff removed the adhesive tape placed on the door catches to
facilitate entry and the plan was aborted. The first successful attempt
at gaining entry occurred on May 28 1972, although results of the
break-in were of no value. One listening device, placed on the telephone
of Lawrence O'Brien,[^186] the Democratic National Chairman, proved
faulty, and other devices picked up personal, not political
conversations. Officials complained about the lack of useful information
generated by their investment, and Liddy made another attempt on June 17
1972. This time, an alert security guard became suspicious about the
'scotch' tape on the door locks, and phoned the police. James McCord,
the security chief of Nixon's re-election committee, and four Cubans,
all dressed in smart business suits, were caught by police. Initially,
the police were confused by the appearance of the well-dressed burglars,
though it was not long before the suspects\' hotel rooms were searched,
and an address book was found with names and private telephone numbers
of senior White House officials. The burglars were also caught in
possession of \$4,200 in \$100 bills, which had originated from funds
managed by Nixon campaign officials. The administration attempted to
frustrate the FBI investigation into the Watergate break-in, trying to
convince law enforcement officials the whole affair was a secret foreign
policy mission related to Cuba.[^187] The FBI were not fooled, and
rejected the administration\'s diversionary tactics. The next attempt to
obstruct justice involved a White House request, asking the CIA to pay
the Watergate defendants to keep silent about who authorised the
break-in. The CIA also refused to be drawn into the conspiracy, and
refused to pay out funds that had been earmarked for 'legitimate' covert
purposes. This situation led to the administration\'s using political
donations as a ready source of hush money. Nixon's personal attorney,
Herbert Kalmbach, raised \$230,000 over the summer of 1972.
Additionally, funds controlled by Haldeman, head of the White House
staff, totalling \$550,000, were later paid to the Watergate defendants.
They were indicted on September 15 1972, and stood trial throughout
January 1973, two months after Nixon won his landslide re-election
victory, carrying 49 of the 50 states. However, McCord, and others, gave
evidence for the prosecution in March 1973, testifying that the
conspiracy involved senior administration officials. McCord's testimony
implicated Presidential counsel John Dean and Jeb Magruder. Eventually,
all but Liddy co-operated with investigators and earned reductions in
their otherwise lengthy prison sentences.[^188]

As the political damage caused by Watergate continued to build
throughout 1973, the administration became the subject of fresh
allegations concerning the Vice President, Spiro Agnew, a self-styled
defender of morality. Agnew was forced to resign in October 1973, after
compelling evidence was produced that he had been involved in bribery,
extortion and tax fraud.[^189] Most of the offences were committed
during 1962-72, when Agnew held the offices of Baltimore County
Executive, Governor of Maryland, and Vice President.[^190] Nixon's
attitude towards the Agnew revelations was perhaps indicative of his
character. Colleagues described his mood as calm, detached and somewhat
philosophical. One might suggest that Nixon viewed the Agnew revelations
as a mercenary opportunity to deflect attention away from his own
actions, and more generally a distraction from the broader Watergate
troubles. After telling Angew that he would have to go, Nixon remarked
to an administration official at the time 'I'm not surprised, they're
all crooks up there in Maryland.'[^191] Gerald Ford, who had led
Republicans in the House for many years, replaced Agnew. As
Congressional investigations and the Special Prosecutor\'s Office
uncovered more illegal practices,[^192] pressure mounted for Nixon to
resign or face impeachment. Nixon finally resigned the office of
President of the United States on August 9 1974. He did not resign
willingly, but was forced from office after Archibald Cox successfully
obtained a subpoena, forcing the disclosure of tapes proving the extent
of Nixon's involvement in the Watergate cover-up.[^193] This evidence,
and the fact that the House Judiciary Committee had proposed articles of
impeachment on July 30 with conviction in the Senate likely, placed
Nixon in an impossible situation. For Nixon, at least, the matter came
to a close, when on the September 8 1974, Gerald Ford granted Richard
Nixon a full and unconditional pardon, for all crimes he committed or
was privy to while in office.

Watergate became synonymous with the break-in at the Democratic National
Committee Headquarters, and the failed cover-up, yet Watergate should
also be remembered as a chronicle of political campaign finance abuse.
If the large amounts of cash on hand,[^194] and unaccounted for, had not
been available to those intent on funding illegal activities, Watergate
could not have occurred.[^195] Therefore, on February 7 1973, the Senate
passed resolution 60, which established a select committee to study the
illegal, and improper campaign activities of the 1972 presidential
election. The committee, was comprised of seven Senators, and was
chaired by Sam Ervin Jr. (D-N.C). The Ervin committee was televised from
May 17 to August 8 and the public hearings held throughout the summer of
1973, were instrumental in uncovering evidence of the Oval Office
tapes.[^196] The committee was also significant, in that it drafted a
comprehensive set of campaign finance reforms, based on the results of
its investigation[^197]

**[Further FCRP Activities Uncovered By The Ervin
Committee]{.underline}**

Some of the Ervin committee's most important discoveries included large
illegal corporate contributions and the sale of ambassadorships.
Corporate contributions were solicited and received by candidates of
both Parties, though the Finance Committee to Re-elect the President
(FCRP) was by far the most adept and fruitful beneficiary. In 1971-72,
the FCRP resurrected the fund-raising practice famously used by Mark
Hanna in the presidential elections of 1896 and 1904. Hanna operated a
systematic wealth tax on big business. Maurice Stans, chair of FCRP,
assessed corporations according to their national ranking, then 'asked'
for a contribution.[^198] Pressure was placed on corporations by the
FCRP through repetitive solicitations by high-ranking White House
officials and by implicit threats about the consequences of a refusal.
These negative consequences were a realistic possibility, as the FCRP
had pioneered the Incumbency-Responsiveness Programme. This was a
strategy that used the governmental apparatus to reward friends and
contributors[^199] and punish[^200]opponents.[^201] These illegal
contributions were sometimes made through reimbursement schemes, and
further disguised by using foreign corporate subsidiaries and foreign
bank accounts.[^202] Foreign accounts were often preferred, as
foreigners were said by some donors to have a less inquisitive cultural
attitude towards the withdrawal of large cash sums.[^203] Additionally,
on February 24 1974, Herbert Kalmbach was prosecuted for promising
employment in return for political activity.[^204] He had sold an
ambassadorship, contrary to Title 18 U.S.C. section 600. Kalmbach
admitted the offence and received a short prison sentence as part of a
plea bargain. This type of offence was notoriously difficult to prove,
as a prior *quid pro quo* arrangement had to be established. As this
kind of activity relied on verbal assurances, negotiation and semantic
gymnastics, individuals felt safe from prosecution, as nothing was
committed to paper.[^205] However, figures presented to Ervin suggested
that ambassadorships were being sold. The CRP received \$1.8 million in
political contributions from serving ambassadors. Of the thirteen new
non-career diplomats appointed, eight contributed a total of \$706,000
to the Nixon re-election campaign. Six other individuals who were
lobbying for appointment gave a total of \$3 million. Robert Gray, who
was employed by Maurice Stans, had a set piece speech, which he
delivered to wealthy office seekers. It avoided crude *quid pro quo*
language, but suggested that once a 'heavy donation' was made, he could
ensure an applicant\'s consideration by the White House.[^206] Without
promising the positions to applicants, he would, nevertheless, play one
off against the other, relaying in turn the size of donation other
applicants had made. Gray would inform those lobbying for appointment
who was 'top man at the moment.' Also, different countries attracted
differing levels of status. Therefore one could expect to pay much more
for a European post than for the hotter, less-developed countries, like
Trinidad, or Jamaica. Despite this arrangement, many lobbying for
ambassadorial posts were to be disappointed, as they often failed to
obtain their desired location, or failed to get any appointment at
all.[^207]

**[Ervin Recommendations And Legislative Change]{.underline}**

The Ervin committee's 2,217 page final report was published on July 13
1974. Although the report reflected its investigatory remit, it also
made recommendations aimed at repairing the integrity of the electoral
process. Most of the committee's thirty-five recommendations were
adopted unanimously, but there was some pessimism about the report's
timely implementation, as Sam Ervin had just announced his
retirement.[^208] Many recommendations were generally designed to
prevent the abuse of government power, though a significant number
advocated campaign finance reform.[^209] Central to these was the
committee's vision of a new enforcement authority. Ervin commented:

> \'Probably the most significant reform that could emerge from the
> Watergate scandal is the creation of an independent, non-partisan
> agency to supervise the enforcement of the laws relating to the
> conduct of elections. Such a body, given substantial investigatory and
> enforcement powers, could not only help to ensure that misconduct
> would be prevented in the future, but that investigations of alleged
> wrong-doing would be vigorous and conducted with the confidence of the
> public.\'[^210]

The Ervin report criticised the tripartite system of enforcement for
lacking independence or sufficient authority. This could be rectified by
a Commission, which would better investigate, deter violations, and win
back the confidence of the public.[^211] However, there was a lack of
consensus over the structural vision, and enumerated powers of the
Federal Elections Commission (FEC). Having the appropriate structure was
fundamental to the effectiveness of the Commission, as those who sat at
its apex would control the institution. The significance of the powers
vested in the agency was more obvious, as they would determine if the
agency was taken seriously, or if, like so many of its enforcement
predecessors, it could be ignored with impunity. The Ervin committee
recommended an odd-numbered Commission, with seven seats. Each appointee
would serve a seven-year term, with appointments staggered. No four
members of the Commission could belong to the same political party, and
the panel would elect its own chair and vice chair from different
Parties. Although the Ervin committee explained the mechanics of
appointment in a less than clear fashion, it suggested that Congress
would have the greatest influence over Commissioner selection.

> 'Of the seven, two members would be appointed by the President from
> among individuals recommended by the President *pro tempore* of the
> Senate upon recommendations of the Majority Leader of the Senate and
> the Minority Leader of the Senate and two members would be appointed
> by the President from among individuals recommended by the Speaker of
> the House of Representatives upon the recommendations of the Majority
> Leader of the House and the Minority Leader of the House.'[^212]

Commissioners would have the power to make regulations, and could
recommend legislation to Congress for its consideration. Finally, its
report made certain recommendations awarding the commission a number of
powers to facilitate its investigatory and enforcement remit.[^213]

In April 1974, the National Academy of Public Administration published
its own report, *Watergate, Implications for Responsible Government.*
The report was requested by the Ervin committee and was given the remit
'to assess the implications of Watergate for the democratic system of
government.' As part of its report, the Academy commented on reform
proposals made by Mr. Hughes, Director of the Office of Federal
Elections (GAO). Hughes offered two alternative reforms to improve the
enforcement of campaign finance laws. The first scenario would
strengthen the existing GAO mechanism, which would be supplemented by a
seven-member supervisory board, representative of the major Parties,
Congress, and President. The second proposal was more radical, and
involved the establishment of an Electoral Commission. It would be
composed of highly respected citizens, appointed by the President, and
serving on a part-time basis. It would also have a full-time director,
adequate staff, and would wield broad authority. The Academy rejected
the first proposal and criticised the record of enforcement under
tripartite arrangements. Although the Academy endorsed the second
proposal, in their view, a Commission without prosecutorial support
would be in danger of becoming a 'toothless watchdog.' In response to
the Department of Justice's historical timidity towards campaign finance
violations, they suggested that a Permanent Special Prosecutor should
support the Commission.[^214] When comparison between the Academy and
Ervin proposals was made, the Ervin recommendations seemed modest. Their
method of appointing Commissioners enshrined Congressional control and
bipartisanship, not independence, and the issue of prosecutorial support
was ignored.

**[Legislative Response To The Ervin And National Academy Of Public
Administration Reports]{.underline}**

The Senate attempted to pass relatively progressive measures, while the
House gravitated towards more conservative bills.[^215] The Senate
wanted public financing for Congressional elections, higher spending
limits, and supported proposals to establish a strong, independent
enforcement agency. The House opposed public financing, and was divided
over the composition and powers of an enforcement board. After the
failure of S372, the Senate passed S3044 in April 1974.[^216] This bill
established a seven-member, independent, Federal Election Commission,
appointed by the President and confirmed by the Senate.[^217] Four
members would be appointed upon the recommendation of Congress, and no
more than four members could be from the same political party. It would
have responsibility for enforcement, and exercise wide-ranging
administrative and policy-making powers. The Commission would make
regular reports to Congress and act as a central clearinghouse, or
repository, for election finance data.[^218] The House bill, which was
reported on 24th July, sponsored by Wayne Hays (D-OH), eleven Democrats,
and three Republicans, was a much more conservative bill. Although
HR16090 provided limited public funding for presidential elections and
national nominating conventions, it failed to control the unethical
practices uncovered by the Ervin committee, to regulate special interest
contributions and, perhaps most importantly, failed to provide for a
strong enforcement authority. Hays proposed a seven-member Board of
Supervisory Officers. This Board would be comprised of the Secretary of
the Senate, Clerk of the House, Comptroller General and four other
Congressionally appointed public members, each serving staggered,
four-year terms. The Board would have similar powers to the Senate bill,
except that the Senate Rules Committee and Hays' House Administration
Committee could veto regulations developed and proposed by the Board.
This model, appointed and controlled by Congress, was criticised in the
Republican minority report. Bill Frenzel (R-MN), one of the bill's
original sponsors\' commented 'if Congress' response to Watergate is to
increase its control over federal elections, then it would be hard to
blame the public for becoming even more cynical and alienated.' [^219]

The House bill was not popular with moderate Republicans or liberal
Democrats, who favoured a stronger enforcement agency. The bill reported
out of committee was very much a product of Wayne Hays, who had built up
a considerable power base, through what one critic called
'nikel-and-diming-things.' Hays, as Chairman of the House Administration
Committee, had control over awarding fringe benefits to House members.
Office space, stationery, telephone, and postage allowances, could be
awarded to supporters, or withheld from opponents. Also, as Chair of the
House Democratic Campaign Committee, he could exercise patronage power
through the dispersal of cash to House candidates.[^220] His aggressive
personality and autocratic behaviour made him loathed and feared by many
in the House, despite having support from an eclectic group of liberals,
conservatives, and black caucus members.[^221] Before opponents to his
Congressionally dominated supervisory board could adopt an entrenched
position, Hays seized the initiative, and proposed concessions of his
own. These moderate changes closed a minor disclosure loophole on
expenditure items below \$500[^222] and gave the supervisory board a
little more independence, something already proposed by fellow Democrat,
John Brademas (D-IN). The board would be reduced to four public members,
with the Comptroller General being removed, and the Clerk of the House,
and Secretary of the Senate sitting as *ex officio* non-voting members.
A final concession allowed that regulations proposed by the board would
not be examined and possibly vetoed by particular Congressional
committees, but by the whole House or Senate.[^223] Changes to the bill
pleased critics like Bill Frenzel (R-MN),[^224] but angered many
others.[^225] The Hays amendments were accepted, and the House bill was
passed on August 8 1974, by 355-48.

**[House/Senate Conference Committee]{.underline}**

Wayne Hays was again determined to get his own way in negotiations with
the upper chamber. He commented:

> 'When we go to conference, this will be the board or there 'ain't'
> going to be any bill, and I will not give in to the Senate on this
> one, and I know other conferees will not either.'[^226]

The conference committee met between September 17, and October 3 1974.
They would have met sooner, but Hays objected to the named Senate
conferees. As Hays had used bullying tactics to defeat the Senate in
conference before, a group of political \'heavyweights\' were delegated
to negotiate their position.[^227] Of the 138 differences to be
reconciled between the two bills, public financing and enforcement were
the main issues of contention. Although Hays had made it clear that he
would not compromise over the enforcement apparatus, one might argue
that it was public financing that he was most opposed to. The Senate
wanted public financing, as their campaigns were particularly expensive.
Obtaining public funds would relieve candidates from relying on special
interest money, and the consequent *quid pro quo* pressures that this
could generate. Although House races were cheaper, they often lacked
competition, as challengers were rarely able to raise sufficient funds
to oust incumbents. Public funding would reduce the advantages of
incumbency and encourage competition. As Hays wanted to maintain the
Democratic majority in the House, he had no intention of allowing the
Senate to try to 'level the playing field,' under the guise of fighting
special interest money. Additionally, incumbency advantage was
particularly salient as Senators had poorer re-election success rates
than House members.[^228] Therefore Hays wanted to maintain the status
quo and avoid encouraging Democratic challengers to his safe, one-party
district with the lure of guaranteed funds.[^229] He had more to lose
over extending public funding to House elections than he did over
concessions on an electoral Commission.

Hays was able to achieve his strategic objectives in conference by using
a variety of tactics. The objections to named Senate conferees and the
five-week delay before agreeing to the first meeting were probably
designed to manipulate the atmosphere in his favour. For example, if
Hays could make Senate conferees anxious about losing the bill
altogether, or make them think he was an unwilling participant, they
might have been more inclined to make concessions to him in conference.
Also, Hays had made a number of tough sounding public statements on his
attitude towards certain key provisions, enforcement being one example.
When Hays made small concessions in conference they would take on more
significance, as he had rescinded on a well-known 'entrenched' position.
Additionally, his success in conference involved inserting spoof or
ghost provisions into a bill. One inserted into HR16090 limited the
acceptance of honoraria, and was known to irk the Senate. This was
deleted in conference, as a trade-off in return for Senate
concessions.[^230] Hays took advantage of his reputation and used
bluster to assert misleading positions that he was not committed to.
This, and the insertion of spoof legislative proposals that could be
traded out later, were part of a successful holistic negotiating
strategy. The outcome was that public financing of Congressional
elections was deleted from the bill. It would only be extended to cover
presidential races and national nominating conventions, something
already contained in the House bill. Hays agreed to the higher spending
limits desired by the Senate and made some minor concessions on the
structure and authority of the election Commission.[^231] Gerald Ford
reluctantly signed the FECA 1974 into law on 15th October 1974.[^232]
The law became effective on 1st January 1975, though the Commission
failed to become operational until April 1975, due to a delay in making
Commissioner appointments. Reform had been achieved, and for the first
time campaign finance laws were to be administered, monitored and
enforced not by Congress, but by a separate Commission.[^233]

**[Establishment Of The FEC (1) (FECA 1974)]{.underline}**

The law established a six-member, full-time Federal Election Commission.
It was responsible for administering the FECA 1971 and its 1974
amendments. Two members of the Commission would be appointed by the U.S.
President, two by the President Pro-Term of the Senate, and two by the
Speaker of the House. Each pair of appointees was mandated to be from
different Parties. Although the Commission had often been referred to as
an independent executive agency, it might be more accurately described
as a bipartisan one, as three Democrats and three Republicans sit at its
apex. All Commissioners were subject to Congressional confirmation,
which included House and Senate. The Secretary of the Senate and the
Clerk of the House were made non voting, *ex officio* members, and would
receive disclosure reports relating to House and Senate
candidates.[^234] Although the Clerk of the House and Secretary of the
Senate were non-voting members, they were entitled to sit in on closed
Commissioner deliberations affecting enforcement matters. One
Commissioner would act as Chairman, one as Vice Chairman, on a rotating
basis and each would serve six-year, staggered terms. It would receive
disclosure reports from Congress, and manage a cumulative index of
campaign finance data. The Commission was also responsible for
administering the public financing programme, and dispensing funds in
accordance with the law. The Commission would also make regulations,
subject to Congressional review within thirty days, and issue advisory
opinions. Regulations made the law more understandable and had general
applicability, whilst advisory opinions clarified the law in more
particular cases. The Commission could subpoena witnesses and
information, could seek civil injunctions, and had the power to select
committees for random audit. Finally, serious knowing and wilful
violations were to be referred to the Department of Justice for criminal
prosecution.[^235]

Despite the achievement of reform and optimism for the future, it was
less than a year before the Judiciary and Congress seriously undermined
the statute and the Commission. Important parts of the law were ruled
unconstitutional and Congress reduced the potential efficacy of the
Commission through its 1976 and 1979 amendments of the FECA.

**[Constitutional Challenge To The Commission]{.underline}**

**[*BUCKLEY v VALEO,* 424 U.S. 1 (1976)]{.underline}**

The Supreme Court decision in *Buckley v Valeo* had a profound affect on
the breadth and efficacy of campaign finance regulation. As recently as
1997, a member of the American Bar Association described the case in a
panel discussion as 'controlling like a huge oak tree in the middle of
the playing field.'[^236] Senator James Buckley (Cons-R-NY), Rep.
William Steiger (R-WI), former Senator, Eugene McCarthy (D-MN), and the
New York Civil Liberties Union, filed 34 complaints challenging the
FECA's constitutionality. In January 1976, the court ruled that
expenditure limits were unconstitutional, as they infringed free speech
protection guaranteed under the First Amendment.[^237] Therefore, the
Court equated spending money with free speech. The exception to this
rule was presidential candidates who had voluntarily accepted
expenditure limits in return for public funds. However, the court upheld
the Act's disclosure provisions and contribution limits. Disclosure
mandates and contribution limits were justified by the court, as they
helped to protect the democratic process from corruption, whether real
or perceived.[^238] Not surprisingly, given the parochial way Congress
had mandated appointment to the Commission, the Court ruled that the FEC
was unconstitutional. The Supreme Court concluded that the Commission
broke the separation of powers and the appointment clause of the
Constitution. As the Commission was partly appointed by Congress yet
performed executive functions, it was unconstitutional and Commissioners
were not, therefore, officers of the United States.[^239] The timing of
this decision was especially problematic, as the 1976 presidential
election had started, and the Commission could not authorise dispersal
of Federal funds until the issue had been resolved. The options under
consideration were to reconstitute the Commission with Presidential
appointees, something President Ford advocated,[^240] allocate FEC
functions elsewhere, something Hays had proposed[^241] or, finally,
attempt more radical reform.

**[FECA 1976: Loosening The Law (1)]{.underline}**

In May 1976, Congress passed, and the President signed, the FECA 1976,
which contained considerable changes to the 1971 and 1974 Acts.[^242] In
the Senate, the Rules Committee proposed changes to the structure and
authority of the FEC, through its bill, S3065. The six-party affiliated
Commissioners were to be joined by two independents.[^243]The bill also
contained provisions that would restrict FEC authority to investigate
complaints, if they failed to meet certain criteria.[^244] Opposition to
the bill came from Republicans and Robert Griffin (R-MI) and Bill Brock
(R-TN) proposed their own bill. Under Griffin-Brock, Commissioners would
be re-appointed by the President and confirmed by the Senate. This would
reconstitute the Commission in accordance with *Buckley*. Although the
Griffin-Brock proposal was defeated twice and S3065 was passed on March
24, both were relatively conservative measures towards FEC reform.[^245]

This was in stark contrast to the House version HR12406 which, under the
stewardship of Wayne Hays, proposed major reductions in FEC power and
authority. As had occurred on two previous occasions, 1972 and 1974,
Hays prevailed in conference. This time, the fledgling FEC had already
made itself sufficiently unpopular with both Parties for Hays to
encounter only token opposition in conference committee. Many law-makers
had complained that the FEC had gone beyond what Congress had intended
in its interpretation of the law, and warned that Congress might move to
limit its power if it was not more cautious.[^246] For example, Senator
John Pastore (D-R-I) criticised the FEC, saying that 'we were running
like scared rats\...we thought the stronger we make it, the more the
people would believe us.'[^247] Opposition to FEC investigatory,
rule-making, and enforcement activities, was reflected in bipartisan
support for the conference report.[^248]

The following provisions contained in the FECA 1976 related to the
enforcement process:

1\. The Commission was reconstituted with six full-time members,
appointed by the President and confirmed by the Senate. The Secretary of
the Senate and the Clerk of the House were retained as *ex officio*
non-voting members of the Commission. This made them privy to private
meetings concerning enforcement actions.[^249] Four affirmative votes
would be required for the Commission to take any official action. This
proviso included initiating investigations, issuing advisory opinions,
regulations, civil actions and all other enforcement activities.[^250]

2\. Congress awarded itself the power to disapprove regulations and
specific parts of regulations issued by the FEC. This was essentially a
*de facto* line item veto. Congress vetoed the first two regulations
proposed by the Commission. These included: (1) that the FEC should be
the sole point of entry for the filing of disclosure reports; (2) that
the office accounts of Congressmen were to be strictly regulated.[^251]
This power was the most serious presidential objection to the bill, as
it could enable Congress to manipulate the effect of the law, in order
to maximise partisan advantage.[^252] Additionally, advisory opinions
issued by the Commission in lieu of regulations could only apply to
specific cases of fact and contained no general applicability.[^253]

3\. Commissioners were prohibited from engaging in outside business
activities, and were given one year to terminate their private work
after appointment. This was aimed at removing Commission Chairman,
Thomas Curtis, who Hays had argued with on many occasions during 1974
and 1975.[^254] As Curtis maintained a law practice in St Louis,
pressure was applied to remove him under the guise of conflict of
interest.[^255]

4\. The Commission was prohibited from investigating complaints that had
not been signed, sworn and properly notarised. An investigation could
only be initiated if, through the normal process of its duties, it found
'reason to believe'[^256] that a violation had occurred or was about to
occur. Anonymous 'tip-offs,' administratively flawed complaints, and
violations publicised in the media could not be investigated.[^257]

5\. The Commission was also mandated to employ informal 'methods of
conference, conciliation, and persuasion,'[^258] when seeking compliance
with the law.[^259] This provision was based on a voluntary compliance
ethos and a belief that most of the regulated community wanted to comply
with the law. It also recognised that an overly vigorous FEC might fall
foul of first amendment protections in the courts.[^260]

**[FECA 1979: Loosening The Law (2)]{.underline}**

The law under which the FEC functioned was amended again in 1979. It was
the product of a House bill, HR5010, and a broadly similar Senate
version, S1757, both of which received a smooth passage through their
respective chambers. After an unusually co-operative conference
committee, President Carter signed the reconciled bill on January 8,
1980. The amendment was motivated by three concerns. Firstly, that the
FECA was stifling grass-roots politics and restricting the role of
Parties in the political process. This was addressed by allowing Parties
to spend unlimited amounts on certain party-building activities. This
would prove to make the regulation of 'soft money' or non-federal funds
more difficult, despite its role in affecting the outcome of federal
elections.[^261] Secondly, that the reporting requirements mandated by
the act were too complex, repetitious and generally too burdensome.
Congress responded by reducing the administrative responsibilities on
filers, and more specifically by requiring fewer reports per election
cycle. Thirdly, some in Congress complained that they were being
unfairly treated by the FEC. The way it monitored candidate committees
through its compliance programme often irked incumbents. Therefore the
House Administration committee removed the authority of the FEC to
conduct the random audit of committees. Although its removal weakened
the deterrent system, the FEC had suspended using random audit by
1978,[^262] after some in Congress likened them to 'fishing
trips.'[^263]

**[Conclusion]{.underline}**

In conclusion, the enforcement of political finance regulation has been
undermined by the courts, the executive and most consistently, by
Congress. In *U.S. v Newberry* (1921), the court declared that Congress
lacked the authority to regulate primary elections. This nullified much
of the effectiveness of the 1910 and 1911 Acts, and shaped the
regulatory parameters of the 1925 FCPA. This decision was not reversed
until 1941, when the court over-ruled the *Newberry* decision in *U.S. v
Classic*. In 1973, the court also ruled that certain provisions of the
FECA 1971 designed to control media expenditures were also
unconstitutional. Although that decision would have adversely affected
less wealthy candidates had it not been for Watergate and the passage of
more comprehensive reform, the court made its most significant ruling in
*Buckley v Valeo* (1976). In *Buckley*, the Supreme Court ruled that
compulsory spending limits infringed freedom of speech protected under
the First Amendment. In the courts view, there was compelling
governmental interest in limiting contributions, as this guarded against
the real or perceived corruption of the electoral system. Contribution
limits were designed to prevent the emergence of *quid pro quo*
relations between contributor and recipient. Although the court took the
view that political disbursements did not pose the same threat of
corruption, as it was impossible for the individual to corrupt
him/herself, the ruling on expenditure limits negated efforts to make
electoral politics more egalitarian and circumscribed the disclosure
model of enforcement. The electorate remained ignorant about political
disbursements, as the law could not require their disclosure. Therefore,
the democratic model of enforcement supported by Cain *et al* could only
represent one facet, the origin, not the destination of political money.
The court has also failed to clarify the constitutional uncertainty
surrounding the law, and has often been loathe to convict in political
finance cases. In *U.S. v United States Brewers Association* (1916), the
court allowed the uncertainty surrounding the regulation of presidential
electors and Senate races to continue. In *US v Burroughs* (1934), the
court failed to convict, acquitting on the basis of a technicality,
despite the respondent's challenge to the law and the multiple
violations involved. Additionally, by erring towards strict
constructionism, as in the *Newberry* case, the courts removed much of
the statute\'s authority over the regulated community. By interpreting
the constitution in this way, the statute effectively became a skeletal
version of the one passed by Congress, and its utility was lost.
Although few in number, these cases were particularly significant, as so
few political finance cases reached the courts.

The Department of Justice has been unwilling to prosecute individuals
for campaign finance violations. No prosecutions occurred under the 1907
Tillman Act, and the only case brought under the 1910 and 1911 Acts was
discontinued after the respondent admitted the offence.[^264] This
tradition of prosecutorial inertia continued under the 1925 FCPA. The
few cases that were prosecuted tended to be related to ballot box
stuffing or vote buying, perhaps not generically political finance
offences. Justice did make some attempt to enforce the law by
prosecuting a number of corporations in the late 1960s and early 1970s,
but this was not indicative of any significant change in policy. For
example, in 1972, when W. Pat Jennings, House Clerk, attempted to
improve enforcement by referring 4,900 cases to Justice, they responded
by prosecuting three cases. Justice also prosecuted a token number of
referrals it received from Francis Valeo, Secretary of the Senate. When
criticised for its lack of vigorous enforcement, the Department of
Justice tended to respond by blaming Congressional officers, or by
arguing that insufficient precedent existed to prosecute offenders.
Campaign finance law was not a priority in the Department, and few staff
or resources were ever dedicated to the public integrity section.
Additionally, the post of Attorney General has traditionally been an
appointment given to individuals as a reward for their role in the
President's successful election. Therefore, if Justice prosecuted the
opposing party, such action might be seen as politically motivated.
Retaliation might come in the form of accusations relating to the
governing party's political finances, or more seriously, obstructionism
in the legislature. Additionally, by prosecuting the governing party,
the Attorney General would be open to accusations of disloyalty from the
rank and file and aggressive political lobbying and legal action should
the respondent be a high-profile actor. The Department of Justice has
preferred to concern itself with apolitical criminal offences. In so
doing, it has managed to avoid political controversy, and avoid becoming
involved in the complex constitutional issues that sometimes surround
political finance cases. It has also saved public money by avoiding
costly and protracted litigation, yet this policy has seriously
undermined the enforcement of political finance laws.

Although the courts and the Department of Justice have played a
significant role in promoting a *laissez-faire* regulatory environment,
Congress has been most active in hobbling enforcement. Despite the
historical scandals that have provoked Congress into passing
legislation, much of the law passed has been inherently flawed, either
by its narrow remit or by its definitional failures. For example, the
Tillman Act failed to regulate Parties, committees, or candidates. It
also failed to contain any disclosure mandates, making the Act's
corporate prohibitions meaningless, as contributions were not subject to
public scrutiny. The 1910 and 1911 Acts were a qualitative improvement
on the Tillman Act. They included prohibitions on the sources of funds,
mandated spending limits and provided for public disclosure. However,
Congress squandered this legislative achievement, as neither Act was
enforced. In the light of the *Newberry* decision, the 1925 FCPA failed
to regulate the primary or nomination process. This narrow remit meant
that a large proportion of the financial activities affecting the
outcome of general elections went unregulated. Although one might not
criticise Congress for passing a law that reflected constitutional
realities, the 1921 decision was not the court\'s most persuasive. Had
Congress displayed the political will to bring primaries into the
regulatory framework, the court may well have supported a fresh
legislative initiative. Justices Brandeis, Clark, Pitney and White
argued that Congress did have the authority to regulate primaries, and
Justice McKenna argued that it might have the authority to do so. When
the court gave its express authority to regulate primaries in 1941,
through its *Classic* decision, Congress failed to legislate until 1971.
Congress wished to avoid regulating primaries, as expenditure limits
would have reduced some of the advantages incumbents enjoyed over their
less well-known, less well-financed challengers. The 1925 Act was also
seriously undermined by the numerous exceptions to its spending limits,
and the way it defined 'political committee.' The reality was that
spending limits became meaningless, and committees campaigning in one
state were able to operate without being regulated at all. The 1971 Act
also had a number of loopholes. By defining 'candidate' in such a narrow
way, it allowed individuals to campaign without formally declaring their
candidacy. This led to individuals behaving like candidates, campaigning
and advancing their political careers, whilst avoiding regulation.
Furthermore, the political finances of social clubs and other fraternal
associations were not adequately regulated, and neither were loans or
other familial gifts to candidates. Despite these weaknesses, the 1971
and 1974 Acts were more comprehensive than previous legislation. The
1971 Act brought primaries within the regulatory framework and attempted
to control the spiralling costs of electioneering. A product of
Watergate, the 1974 Act introduced spending limits, contribution limits,
strict disclosure mandates and established the Federal Election
Commission. Yet it was not long before Congress passed further
legislation in the form of the 1976 and 1979 FECAs, that adversely
affected enforcement. Congress could micro-manage the FEC rule-making
process by exercising its *de facto* line item veto. The voluntary
compliance ethos introduced by Congress also made it difficult for the
FEC to resolve enforcement cases without entering into lengthy
negotiation with respondents. Finally, Congress eroded the use of the
media as a source of information about political finance abuse, as
complaints would only be legally recognised and investigated if they met
strict legal criteria. The 1979 Act made enforcement less meaningful as
it legitimised and encouraged the use of 'soft money' for
'party-building\' activities. As more money was spent outside Federal
regulations, seeking compliance becomes increasingly marginal, as
regulated money becomes a fraction of the whole. The Act also reduced
reporting requirements, and more significantly for enforcement, formally
removed the authority of the FEC to use random audit.

In addition to these legislative issues, Congress has also shown a
historical unwillingness to carry out the enforcement responsibilities
it has awarded itself. It resisted initiatives to establish an
independent enforcement authority, something that was called for in
1928, 1962 and 1970. The existing parochial enforcement arrangements
appeared to suit vested interests in Congress. No enforcement mechanism
was established under the Tillman Act, and the Clerk and Secretary of
the Senate failed to enforce the 1910 and 1911 Acts. This
*laissez-faire* enforcement ethos continued under the 1925 Act until the
Clerk of the House, W. Pat Jennings, made an attempt to strengthen the
process in the early 1970s. As the Clerk and Secretary were dependent on
influential Congressional leaders to retain their positions, neither
usually risked antagonising their employers, and would attempt to
protect them from unwanted scrutiny. Congressional employees could be
obstructive to those seeking disclosure information. Records were
destroyed and access to important documents was arbitrarily withheld.
Under the 1910 and 1911 Acts, no central disclosure repository existed,
and under the 1925 Act, the repository had short opening hours, and only
allowed the copying of reports by hand. Congress preferred to
investigate alleged campaign finance violations itself, often through
*ad-hoc* committees. This method of intra-Congressional regulation
rarely led to substantive action being taken against wrongdoers, yet it
provided the appearance of maintaining probity and compliance with the
law. Although the courts and the executive have undermined the
enforcement process, Congress has used legislative, budgetary,
oversight, and appointment powers to ensure that enforcement never
seriously challenged the interests of incumbents.

**[CHAPTER 2]{.underline}**

**[FEC PERFORMANCE]{.underline}**

Prior to Watergate and the establishment of the FEC, campaign finance
laws were largely unenforced.[^265] The long history of scandal, reform
and non-enforcement was a cyclical process and something ingrained in
political culture. To repair the integrity of the electoral process, the
FEC was instructed to 'administer, seek to obtain compliance with and
formulate policy'[^266] with respect to the FECA.[^267] This remit led
the FEC to becoming a small, but multifunctional bureaucracy with three
primary roles:

1\. administration of the Presidential Public Funding system

2\. management of and providing access to, disclosure reports and other
information

3\. enforcement of disclosure requirements, limits and prohibitions on
contributions.[^268]

When commenting on or assessing FEC performance, some leading academics
fail to establish benchmarks upon which the agency might be judged. For
example, Cain and Lochner liken campaign finance violations to
victimless crimes, in that they do not create a readily identifiable
injury or loss.[^269] They argue that as this precludes the
establishment of an aggregate or baseline number of violations, it is
difficult to assess the efficacy of enforcement regimes. For Cain and
Lochner the perception of failure by \'some Parties\' is a sufficient
foundation upon which to base their later explanatory comments.[^270]
This scenario leads them to ignore the measurable, often quantifiable,
performance indicators that the FEC strives to achieve. For example, in
response to the Government Performance and Results Act 1993, the FEC is
required to set out clear performance objectives and goals.[^271] These
institutional aims were first transmitted to Congress in 1995 in the
form of a strategic plan.[^272] From these long-term objectives, an
annual performance plan is drafted and submitted with the budget request
to the Office of Management and Budget (OMB).[^273] These performance
objectives have remained largely unchanged since their introduction.
This reflects the enduring nature of institutional processes and the
legal constraints placed on the agency.[^274]

In the case of the FEC, GPRA objectives and goals are determined by
individual parts of the bureaucracy and not by Commissioners. The
structural composition of the Commission precludes long-term strategic
management. Therefore, these performance indicators will be used more as
an organisational tool in the discussion that follows and not as a
representation of conscious management decisions from the top. When
asked about GPRA performance objectives, Commissioner Mason commented:

> David Mason. \'They are determined by the staffs and the individual
> offices involved and co-ordinated by the finance office. Those are
> bubble up processes from inside the agency and Commissioners don\'t
> participate in that goal-forming process. We fiddle with it a bit and
> say, \"well, we ought to be able to do a little better here, or this
> doesn\'t look very important, or something like that.\"[^275]
>
> David Mason. \'I understand why you are trying to use that as a tool,
> but to be blunt about it, I don\'t see much relationship between the
> GPRA and how the Commission operates. I don\'t see it as a
> particularly useful set of management tools, as representing a
> particularly useful set of management oversight tools for OMB or
> Capitol Hill. It may be different for other agencies, I don\'t know.
> If you had a single administrator, there are certain things that you
> could perhaps get into a more orderly process, but that would run
> counter to the very deliberate way the Commission was set up, to
> deliberately frustrate that sort of thing.\' [^276]

Despite this criticism, using the GPRA to examine FEC outputs is a
worthwhile endeavour, as it enables observers to differentiate between
what the agency tries to do and what academics and other observers think
it ought to do.

In addition to setting out how agency resources are allocated between
functional units,[^277] the budget request also contains a number of
programme objectives. These objectives tend to be enduring statements of
intent and sometimes contain idealist language like \'promoting public
trust.\'[^278] Programme goals are more numerous and have a more
quantifiable, measurable quality. Despite the continuity of both
indicators, they have sometimes been adjusted to reflect changing
capacity, workload and institutional aspirations. Whilst these
indicators are used in the examination of all three core programmes, the
main focus of the chapter is dedicated to enforcement performance.

**[Administration Of Public Funding System]{.underline}**

The public funding system provides financial support for those competing
in Presidential primary and general elections. Parties also receive
funds for the presidential nominating conventions in an election year.
Although the U.S. Treasury acts as the funding repository, revenue for
the programme is raised from a voluntary \$3 Federal Income Tax
check-off.[^279] The FEC acts as a gatekeeper, determining eligibility
criteria for primary matching funds, and assessing how much candidates
should receive. Candidates have to raise \$5,000, in individual
contributions of \$250 or less, in at least twenty States to become
eligible for the programme.[^280] General election candidates receive a
flat sum, which was established in 1976 at \$21.8 million for a major
party candidate. This figure reached \$61.8 million in 1996 and \$67.56
million in 2000, as the formulae had been inflation indexed. The figure
for nominating conventions was set at \$4 million in 1974, a figure that
rose to \$12.3 million in 1996, and \$13.5 million in 2000. Presidential
candidates must electronically submit disclosure reports to, and agree
to be audited by, the FEC. If these Title 26 audits uncover any
irregularities or errors, candidates or committees may have to make
repayments to the Treasury. The FEC 2001 budget request set out the
following objectives and goals for the Public Funding System:

\(A\) **Objective:** Certify the eligibility of Presidential candidates
and committees for federal payments in a timely and accurate
fashion.[^281]

**Goal:** Process the certifications quickly and accurately.[^282]

**Process Performance:** The data to establish threshold qualification
and primary matching funds is received by the Deputy Assistant Staff
Director (DASD). The DASD and a number of temporary staff verify the
cheques by State, verify contributor information, and analyse
submissions for any unusual patterns or trends.[^283] The process is
then repeated twice by another member of staff, reviewed by the DASD,
and finally checked by an in-house auditor. A range of information
technology applications assist in certifying the legitimacy of
submissions, which aids timeliness, and staff were praised for
proactively working with candidates. Certifying convention funding and
general election grants was accomplished quickly, as the process is
straightforward and demands few resources. The recent
PricewaterhouseCoopers (PWC) audit found that staff followed standard
review procedures and had a zero tolerance for errors.[^284] However,
the FEC has been less successful in achieving the timely completion of
other Public Funding performance goals contained in the budget request:

\(B\) **Objective:** Promote public trust by ensuring that all public
monies are accounted for and expended in compliance with the FECA.[^285]

**Goal:** Complete all public funding audits within two years of the
2000 presidential general election.[^286]

**Process Performance:** The Commission has been criticised for the lack
of timeliness in carrying out presidential, title 26 audits. These
audits are an essential part of monitoring compliance with the law, and
some have taken up to four years to complete.[^287] This denies the
electorate important disclosure information, and may result in a failure
to recover public funds incorrectly released, as a three year statute of
limitations applies.[^288] There are a number of reasons for this lack
of timeliness. Audits are nation-wide, and involve the scrutiny of many
millions of dollars in transactions. Different state laws apply for
primary elections, and involve many technical determinations relating to
limits and qualifications. These processes make audits labour-intensive,
and concomitantly, very expensive.[^289] Streamlining the audit process,
reducing Divisional reviews, abolishing some auditee waiting periods,
employing more staff, and expanding the use of technology, are all
measures that the FEC have taken to improve title 26 audit
performance.[^290] However, although 1992 audits were completed by 1994,
the main Clinton/Gore 1996 committees were not audit-approved until June
3 1999. Another example of delay was Bob Dole\'s primary committee, Dole
for President, Inc, which had a repayment determination of \$515,272
made in 1999 for over-spending.[^291] Optimists might argue that this
delay was an aberration, unrepresentative of future performance. For
example, the 1996 elections involved widespread soft money abuses and
illegal foreign contributions, which presented the FEC with a
significantly increased workload.[^292] Pessimists might point out that
the litigation that affected the disputed 2000 election result, with its
associated multi-million dollar defence fund spending, may again create
an unexpected workload for the FEC. In summary, the FEC administered and
managed the public funding system in a very similar way to that of its
other responsibilities, rigorously, but lacking in timeliness. Like many
bureaucracies, the FEC was found to consider efficiency and productivity
as secondary priorities to confidentiality, impartiality and mistake
avoidance.[^293]

**[Disclosure, Education and Outreach]{.underline}**

Disclosure equips the electorate with information through a variety of
media to enable them to make informed democratic choices. Interested
observers have an opportunity to access data concerning the origins,
levels and frequency of contributions. In doing so, the FEC facilitates
voluntary compliance with the FECA through 'sunshine' and openness.
Larry Sabato asserted that, 'disclosure is the single greatest check on
the excesses of campaign finance.'[^294] Although broadly classified as
disclosure responsibilities, the FEC carried out a number of diverse
information management roles. Some of these were reliant on capital
intensive information technology and some were very humanistic and
involved conferences and workshops where people could ask questions and
learn from FEC staff.

**[Review and Processing of Reports]{.underline}**

The FEC attempted to achieve the following objectives and goals, which
were also contained in their 2001 budget request.

\(C\) **Objective:** Review and process the financial reports filed by
political committees, and the data taken from those reports, in an
accurate, and timely manner.[^295]

**Goals:**

1\. Facilitate electronic filing of reports.

2\. Place reports on the public record within 48 hours of receiving
them.

3\. Review all reports filed, 60% of which within 90 days.

4\. Attempt to voluntarily correct the public record, by sending out
Requests For Additional Information (RFAI).

5\. Code and enter into the FEC's database 95% of disclosure reports
within 45 days of their receipt.[^296]

**Process Performance:** The Disclosure, Data Systems, and Reports
Analysis Divisions (RAD) held responsibility for achieving the
objectives set out above.[^297] The FEC has spent considerable resources
encouraging electronic filing of disclosure reports and despite initial
software compatibility problems, progress had been made.[^298] The
voluntary scheme, initiated in January 1997, had led to 1,000 committees
filing electronically during 2000.[^299] On June 15 2000 the Commission
approved mandatory electronic filing for all committees receiving or
spending in excess of \$50,000 per year. This became effective in
January 2001, and should result in 98% of the regulated community filing
electronically.[^300] Reports had successfully been placed on the public
record within 48 hours and in many cases within 24 hours, when filed
electronically. RAD identified nearly 12,000 first and 6500 second RFAIs
during 1996. For authorised committees, 40% related to mathematical
errors, 23% related to missing reports, and 17% related to missing or
inadequate information.[^301] The remaining 20% related to FECA
limitation or prohibition standards.[^302] Levels for the year 2000
reached 13,475 first and 3,713 second RFAI requests.[^303] A profile of
the errors and violations identified for year 2000 data has not yet been
published. Through review and clarification of transactions, an accurate
public record was created. Additionally, PWC carried out a survey of 353
committees from the filing community, using stratified random sampling.
The results found that 86% of RAD staff answered questions promptly, 80%
answered accurately and 67% stated that staffs were always available to
respond to requests.[^304] However, the filing community and others
found the database somewhat dated and inflexible.[^305] Additionally, no
database or manual record exists that collates financial disbursements.
Therefore, the electorate remains ignorant of candidate and committee
spending.[^306] For example, some not for profit, non-partisan groups
receive funding from Party committees. Those funds are then spent in the
furtherance of a political objective, yet they are exempt from the
disclosure mandates contained in the law. Finally, the disclosure
information on the database, when compared to the totality of
unregulated, and unreported political spending, has become less
meaningful, in the light of modern campaigning strategies.[^307]
Therefore, the database offers a snapshot of particular activity, but
not an overall picture. A disbursement database would enhance the
quality of disclosure. Despite process compartmentalisation (something
prevalent across the board at the FEC[^308]) PWC concluded that the
review and processing of reports was competently managed and
productivity had increased.[^309] Similarly, there appears to be a
consensus that the FEC has been successful in achieving other objectives
and goals that have helped to educate a broad constituency about
political finance issues.

\(D\) **Objective:** Make the reports and data readily accessible to the
public, media and filing community.[^310]

**Goals:**

1\. Provide the public with Internet access to its disclosure databases,
and digital images of the original reports.

2\. Operate a storefront Public Records Office where reports and data is
available in various forms, and where the public can access disclosure
databases.

3\. Operate a Press Office to assist the media with disclosure and
dissemination of campaign finance data.[^311]

**Process Performance:** The FEC Internet web-site provides a range of
campaign finance information, archive and administrative forms. Although
it was updated in September 2000 and redesigned in 2001, there have been
criticisms about the timeliness of the information posted.[^312]
Additionally, from the small group of filers (25) that was asked by PWC
about the usefulness of the Internet web-site, 49% said that they had
never accessed it.[^313] However, as the PWC sample frame was small, the
results should not be used to draw any substantive conclusions. The site
averaged two million 'hits' per month, and in October 2000, received 10
million.[^314] Finally, despite its apparent popularity, access to the
digital images of the disclosure reports has not yet been
provided.[^315]

There is a broad consensus that the Public Records Office (PRO) provided
a \'first class\' storefront service. Its excellent reputation has been
fostered since it opened its doors in 1975. The staff was found to be
dedicated, knowledgeable, customer-friendly and responsive to individual
needs. The PRO provided ample space, and its open plan working area
reflected its egalitarian atmosphere. Additionally, the PRO provided
extended hours, which included weekends and evenings, during busy filing
periods.[^316] The 25 campaign finance indices also made the raw data
more accessible and understandable for users. PRO staff conducted
primary research for academics and students, and dealt with complex
inquiries from Senators, members of Congress, and campaign
organisations.[^317] Divisional statistics for the year 2000 showed that
the PRO had processed 1.6 million pages of data, dealt with 6,067
requests for finance reports, had 10,297 visitors and answered 11,183
telephone enquiries.[^318] Craig Brightup, who worked in Public Records
under Kent Cooper[^319] from 1978-1981, explained why the PRO has been
so successful:

\'Early on, we had to choose between two very different approaches to
our data collection. The traditional view is to treat public records as
a massive filing operation. That way, the main concern is keeping the
information filed in proper order. The public can use the collection, if
they can understand the filing system but the emphasis is on storing
information. The alternative, which we opted for, was to treat our
collection as public information, and make it as user-friendly as
possible. That way our visitors can easily become self-sufficient
informed users.'[^320]

Press Office staff summarise data on campaign finance, enforcement
actions and issue press releases on the Commission\'s significant
activities.[^321] Although their primary constituency is the media, they
have also provided researchers with an invaluable inter-face with the
agency. The Press Office received 1,716 visitors during the year 2000
and dealt with 14,998 telephone enquiries.[^322] It also acted as a
repository for a substantial amount of campaign finance data and
answered all requests made under the Freedom of Information Act.[^323]
Further objectives and goals contained in the budget request are set out
and discussed below.

\(E\) **Objective:** Educate the public, the media, and the filing
community about the legal requirements pertaining to disclosure,
contribution limits, and prohibitions, and the public financing of
Presidential elections - the core elements of the FECA.[^324]

**Goals:**

1.Operate a 1-800 telephone line, and maintain well-informed staff to
answer enquiries.

2\. Produce educational and information brochures to supplement the
FECs\' Annual Report.

3\. Conduct technical workshops on a nationwide basis.

4\. Provide guidance on the law by revising regulations and releasing
advisory opinions.[^325]

**Process Performance:** The FEC operated a number of outreach
information and educational services. These have included the 1-800 free
information service, which is staffed by public affairs specialists.
Documents were also provided to the regulated community who requested
them by telephone. The 24-hour automated FEC fax-line also remained
popular with the filing community. In 1994, the first year of its
operation, it dispatched 2,500 documents and demand during 2000 remained
buoyant with 1,714 callers receiving 2,319 documents.[^326] Several
Roundtables per year were held by the FEC, which generally catered for
small groups of no more than twelve. Conferences were held regionally
and focused on particular areas of the law, some of which have included
Labor/Membership organisations, PACs, Candidates, and Parties. During
2000, 30 conferences were held.[^327] FEC regulations and advisory
opinions were made available via a range of documents and could also be
found in an archived catalogue displayed on its Internet web-site.
Finally, the monthly FEC in-house journal, the *Record*, could be
requested free of charge and contained summaries of compliance matters,
court cases, public funding issues, and campaign finance statistics.
Although useful, due to its brevity, it acted more as a tool to identify
particular issues for further research.

**[Compliance with and Enforcement of the FECA]{.underline}**

The main part of this chapter is devoted to making a performance
assessment of the FEC enforcement process. The introductory section
explains how the Office of the General Counsel functions. The next
section discusses the issue of enforcement timeliness. Timely
enforcement of campaign finance law is important if the electorate are
to be able to make informed democratic choices at the polls. This will
be followed by a discussion and evaluation of two new additions to the
enforcement apparatus; the administrative fines programme and the
alternative dispute resolution (ADR) programmes, each of which were
designed to improve timeliness. The latter sections broadly deal with
the issue of enforcement fairness. Some observers have attempted to
characterise the Commission as partisan, whilst others have argued that
it unfairly targets individuals because of their status. Finally, the
enforcement priority system (EPS) is discussed. This attempts to
prioritise cases deserving of Commission resources, and dismisses low
priority and stale cases.

**[FEC: Office of the General Counsel]{.underline}**

The Office of the General Council, which is staffed by approximately 100
full-time employees, is responsible for monitoring and ensuring
compliance with the law.[^328] To facilitate compliance, the Office of
the General Council (OGC) operates the Commission\'s enforcement
programme. The OGC becomes aware of violations in a number of different
ways. The Commission may detect violations through the scrutiny of
disclosure reports by the Reports Analysis Division. If a committee
files reports that break the Audit Point Assessment, in that its reports
appear to be substantially inaccurate or inadequate, they may be
referred for a 'title 2 audit for cause.' This may lead to substantive
enforcement action, should the audit find violations of the Act.[^329]
The Commission also learns of violations through receiving complaints.
Complaints must be made in writing and have to meet strict criteria if
they are to be formally recognised and investigated by the
Commission.[^330] Internally generated referrals tend to yield
proportionally more cases of reporting non-compliance than externally
generated complaints. These *malum prohibitum* violations usually relate
to reporting errors and the late filing or non-filing of disclosure
reports. Examples of the more serious *malum in se* violations might
include breaking contribution limits, making a contribution in the name
of another or accepting foreign contributions.[^331] The agency is often
described as more of a \'responding agency\' than an \'initiating one\'
as most cases of substantive non-compliance are brought to its attention
by external complaints.[^332]

[Table 2.1: Internal Referrals and External Complaints Received by the
FEC.]{.underline}

  ------------ ---------- ---------- ---------- ---------- ---------- ----------
               1994       1995       1996       1997       1998\*     TOTALS

  External     259        53         258        63         79         712
  Complaints                                                          

  Internal     97         95         56         84         32         364
  Referrals                                                           

  Total New    356        148        314        147        111        1076
  Cases                                                               
  ------------ ---------- ---------- ---------- ---------- ---------- ----------

\* Through September 30, 1998. Source: PWC Audit (1999) Exhibit 4-32.

Ginsberg and Shefter describe how both Parties engage in what they call
a \'R.I.P.\' strategy. This tactic of \'revelation,\' \'investigation\'
and \'prosecution\' involves both worthy and unworthy allegations of
non-compliance to the FEC by individuals and organisations.[^333] Other
government agencies may also refer alleged FECA violations to the
Commission for investigation. Finally, individuals may refer themselves
to the Commission in a *sua sponte* admission.[^334] This voluntary
admission of guilt can be motivated by a desire to resolve an offence
quickly and rarely involves wilful substantive violations. However,
those who make a *sua sponte* admission often do so in the belief that
they might benefit in some way. This is a mistaken belief, as the
Commission does not seek lower fines from those making voluntary
admissions of guilt.[^335] If the statutory criteria are reached, all
cases become Matters under Review (MUR) and they receive a number for
identification and tracking purposes. The OGC then examines the case and
makes a recommendation to the Commission as to whether there is 'reason
to believe' a violation has occurred. Commissioners deliberate the case
in closed session. If four of the six Commissioners find \'reason to
believe,\' an investigation is authorised and then conducted by OGC. A
'no reason to believe' finding results in the dismissal of the case
without investigation.[^336] If the MUR is the result of a complaint,
the complainant may challenge the Commissions dismissal of the case in
District Court. The respondent may be offered the opportunity of
\'pre-probable cause\' conciliation. This means that the respondent and
the Commission resolve the matter and reach an agreement prior to the
next formal stage in the enforcement process. If this does not occur,
the Commission deliberates the matter and may find \'probable cause to
believe\' that a violation has occurred. The respondent is then afforded
another opportunity to conciliate with the Commission. However, the
Commission may also reach a finding of \'no probable cause.\' In which
case, the Commission usually sends a letter to the respondent setting
out the relevant regulations and reminding them of their duty to comply
with the law.[^337] The final option for the Commission if a respondent
continues to resist conciliation efforts, is to resolve the matter in
District Court. [^338] Overall, the enforcement process involves
multiple legal reviews and numerous Commissioner votes to authorise
further action or dismiss the case.[^339] Sanctions open to the
Commission are somewhat limited as the process is based on a voluntary
compliance ethos. However, respondents may be sent an admonishment
letter, receive an administrative fine, or negotiate a conciliation
agreement with a financial penalty. If a violation involves large sums
and appears deliberate, technically a 'wilful violation,' the matter may
be referred to the Department of Justice for criminal
investigation.[^340] As litigation can be costly and onerous for the
Commission and respondents, *malum prohibitum* violations are mostly
resolved through administrative fines and *malum in se* violations are
usually resolved through the negotiation of a conciliation
agreement.[^341]

Despite the qualified success of the public funding programme and the
unqualified success of the disclosure programme, enforcement performance
has remained poor. Although the FEC was praised for its potency in the
1970s, enforcement has been the subject of criticism throughout the
1980s and 1990s.[^342] Academics and journalists have used the following
descriptions when referring to the agency, 'beleaguered,'[^343] 'a
toothless tiger,'[^344] \'lapdog,'[^345] 'pussycat,'[^346] 'toothless
watchdog,'[^347] 'wobbly watchdog,\'[^348] 'sleeping watchdog,'[^349]
'feckless,'[^350] 'pathetic,\'[^351] \'a self-licking ice-cream
cone'[^352] and the \'failure to enforce Commission.\'[^353] J. K.
Galbrath views this regulatory failure as inevitable:

\'Regulatory bodies, like the people who comprise them, have a marked
life cycle. In youth they are vigorous, aggressive, evangelistic, and
even intolerant. Later they mellow, and in old age - after a matter of
ten, or fifteen years - they become, with some exception, either an arm
of the industry they are regulating, or senile.'[^354]

Although Galbrath\'s description of regulatory failure is something of
an exaggeration, the FEC compliance and enforcement record has attracted
far more criticism than the Public Funding, Disclosure, Education and
Outreach programmes. The objectives and goals that relate to the
compliance and enforcement programme are set out and discussed below.

\(F\) **Objective:** 'The FEC compliance programme is premised on the
belief that the Commission\'s first responsibility is to try and foster,
on the part of the filing community, to voluntarily comply with the laws
reporting requirements, fundraising restrictions, and public funding
statutes. To buttress educational efforts, the Commission carries out a
credible Compliance Programme.'[^355]

**Goals:**

1\. Enforcing the law in a timely and fair way against persons who
violate the law.'[^356]

2\. Maintain up to 40% of total enforcement cases in an active status.

3\. Close 225 cases, 55% of which would be through substantive action.
This might include findings of no reason to believe.

4\. Initiate 10 or 15 civil actions to enforce the law in cases where
conciliation has failed, 2 U.S.C. 437g(a)(6).\*

5\. Maintain the Enforcement Priority Scheme, a system that prioritises
resources and dismisses low rated or stale cases.

6\. Conclude some or all of the major cases involving complex legal
issues remaining from earlier election cycles, 1996 and 1998.[^357]\*

Unlike Presidential Public Funding and Disclosure programmes, compliance
and enforcement goals are more politically sensitive. Enforcement action
may generate bad publicity, involve the levying of fines and may
ultimately result in civil or criminal litigation. The relative modesty
of compliance goals is a reflection of this sensitivity. Additionally,
although all the goals set out above will be discussed in the
performance assessment, they are less readily dealt with on a purely
compartmentalised basis. Any attempt to do so, whilst organisationally
convenient, would obscure understanding and reduce the validity of
observations made. Therefore, active to inactive case ratios will be
discussed in the first section on timeliness, as that goal and its
achievement necessarily impacts on the general level of timely
enforcement. Similarly, it would be inappropriate to discuss timeliness
and fairness together, as they are separate issues. Fairness, whilst set
out in the first goal, is something that is much more closely related to
the Enforcement Priority System, which is set out in the fifth goal.
This functional confusion is perhaps not surprising given the
compartmentalised organisation and working practices of the
Commission.[^358]

**Process Performance:** Timely enforcement is essential if the
electorate is to be afforded the opportunity of making informed
democratic choices. Timely enforcement of the disclosure provisions
contained in the law allows voters to \'evaluate the connections between
contributors and potential officeholders.\'[^359] The electorate takes
on the role of the supervisory power by deterring any unethical or
unseemly relationships between contributor and recipient. As all MURs
remain confidential until they are concluded, it is only through the
timely enforcement of substantive cases that the electorate are also
made aware of any more serious non-compliance. The adverse publicity
model of deterrence is underpinned by the possibility that individuals
might alter their voting behaviour as violations are placed on the
public record. Lengthy delays in identifying violations tend to make
respondents less willing to conciliate as the three-year criminal
statute of limitations approaches and the Commission attracts criticism,
as it appears inefficient. Additionally, Cain and Lochner have argued
that the electorate is less willing to alter their voting behaviour as a
result of older violations.[^360] Unfortunately, the FEC has a poor
record in achieving timely enforcement. Former Commissioner Trevor
Potter, a Republican appointee, felt that timeliness was a particularly
significant problem at the Commission:

Trevor Potter. \'One of the goals that was discussed at the Commission
when I was there was at least to turn cases around so that they were
resolved by the next election cycle, so that if somebody was accused of
breaking the law in an election, by the time they came up for
re-election, the answer was out on the public record. The Commission
never meets that in House races because it\'s only two years.'[^361]

Mr Potter was then asked if this was an enduring problem.

> Trevor Potter. \'I think it has been all the way through and still is.
> I don\'t think it is an unrealistic goal. It seems to me appropriate
> that if you have this sort of a process, to say that voters ought to
> know by the next election cycle what happened in the previous one, and
> we don\'t do that. Specifically, timeliness by the next election cycle
> which is a target the Commission set in the early 90s and has never
> met for House candidates. Sometimes does meet for Presidential,
> sometimes not, usually meets for the Senate, because it's six
> years.\'[^362]

Alex Vogel, General Counsel at the NRSC offered a similar portrait of
enforcement timeliness. When asked if enforcement cases were resolved
within one election cycle, he replied:

Alex Vogel. \'Oh never! I can guarantee you, if you walk into my office
and say \"I have a complaint from the FEC,\" I can promise you that, if
you have a reasonably good lawyer, that it will never see the light of
day until after you are elected. And people operate under a very simple
principle \"we\'ll deal with that after the election.\" \"If I get
elected to the U.S. Senate, I won\'t worry that I owe the FEC \$50,000,
because I\'m elected to the U.S. Senate.\" That's how people feel about
it. You\'ve got the idea that all compliance cases are by definition
confidential until after they are done. It\'s political enforcement.
Politicians respond to criminal liability, or bad PR. You\'re not going
to get any bad press, the person filing the complaint might have a press
conference, but any real meat is confidential until it\'s resolved. I
can guarantee you, you know, in a two-year election cycle, it will be
after you are elected. So the vast majority of these things there is no
real pressure.\'[^363]

Congress has also expressed its concern about the slow resolution of
enforcement cases. The matter was raised a number of times during the
agencies 1994 appropriations hearings. Commissioner Potter responded to
questions by Representative Visclosky (D-IN) by conceding that the
Commission still had cases on its enforcement docket from \'1990, 1988
and some before that.\'[^364] Another Democrat, George (Buddy) Darden
(D-GA), commented at the same hearing:

> \'The most frequent complaint that we Members hear, and I realise the
> difficulty with which you operate, is the length of delays in
> enforcement.\'[^365]

Representative Darden then complained about how unwarranted or frivolous
complaints were damaging the reputations of Members because they were
not being resolved in a timely enough manner. Bob Livingston (R-LA),
former Chair of the House Appropriations committee and long time critic
of the FEC, also raised the issue of poor timeliness at the 1994
authorisation hearing. He commented:

> \'I understand the cases actually take four to six years to resolve at
> the FEC. Is that a good average of your matters under review?\'[^366]

Although Congressman Livingston was well aware that the majority of
cases were resolved more quickly than this, the subcommittee was
provided with an age breakdown of FEC MUR\'s.

[Table 2.2: Breakdown of MURs by age category, March 1
1993.]{.underline}

  ---------------------------------------------------------------- ------
  Pre-MURs and RAD Referrals                                       42

  MURs under six months old                                        131

  From six months to one year                                      82

  From one year to two years                                       49

  From two years to three years                                    26

  From three years to four years                                   10

  Over four years                                                  29
  ---------------------------------------------------------------- ------

Source: U.S House of Representatives, Subcommittee on Elections, FEC
Authorisation Hearings, Fiscal Year 1994, 148.

However, in fiscal year 1995, in written answers to questions submitted
by the appropriations subcommittee, the Commission admitted that
enforcement timeliness had \'degraded\' during 1992-1994 in comparison
with the previous two election cycles.[^367] During authorisation
hearings that year, Bob Livingston and Texas Democrat Martin Frost both
criticised the continuing lack of timely enforcement. Bob Livingston
commented:

> \'The FEC has spun out so many regulations and conducted so many
> enforcement cases that drag on for years and years, that I fear that
> the FEC may be making criminals out of honest people whilst it does
> not effectively deter the serious offender.\'[^368]

Congressman Frost then engaged in a dialogue with FEC Vice Chairman
Danny Lee McDonald, a Democratic Party appointee. The Vice Chairman
responded to his questions by stating that simple cases might take an
average of 8 months to complete and more complex cases substantially
longer. The Congressman\'s testimony was indicative of the legislative
dissatisfaction with poor timeliness and the fact that all enforcement
took place after the election.[^369] In fiscal year 1998, the
appropriations subcommittee asked, \'during 1996, what was the average
time for the resolution of cases? How has this changed over the past few
years?\' The Commission responded by setting out that:

> In calendar year 1996, the average time for resolving activated cases
> was 277 days from the date of activation to the date of closure. This
> is an increase of 30 days from the average of 247 days active in 1995,
> and 115 days from the average of 162 days active in CY 1994.[^370]

Poor timeliness has been an issue that has concerned Congress enough to
regularly discuss it through oversight, authorisation and appropriation
hearings. However, what is less clear is why they have repeatedly asked
for quantitative data concerning average case closure times. These
figures are essentially meaningless in that they lack validity. If the
FEC chose only to pursue *malum prohibitum* violations (simple
straightforward violations) timeliness would be impressive. If it chose
to deal with significant numbers of difficult, complex cases involving
multiple respondents and unsettled areas of law, timeliness would be
much worse. Therefore, there is no average case and, consequently, there
can be no meaningful representation of average case closure times. One
might offer two explanations why Congress has continued to ask these
seemingly inappropriate questions. Firstly, as the House election cycle
is only two years, Congressmen may often find they are carrying out
oversight, appropriation and authorisation responsibilities without
understanding the minutiae of a particular policy area. Commissioner
David Mason, a Republican Party appointee supported this view, \'they
don\'t understand the inside operations of the Commission at all and
that's not uncommon.\'[^371] Secondly, one might argue that senior
members of Congress like Bob Livingston ask these \'inappropriate
questions\' for political reasons. Tina VanBrakle FEC Director of
Congressional affairs supported this view:

> Tina VanBrakle: \'I think that some of the key Members, who have
> oversight over the agency, do understand how we work. But that changes
> a lot, new members coming on the committee, and so forth. And it is
> very hard to keep all of them appraised. Sometimes I think they
> understand the law better that they admit to understanding it, they
> might want to prove something at the time.\'[^372]

Their purpose is not to aid understanding, but to criticise political
finance regulation and bureaucracy in general. The appropriations
hearings held on March 1 1995 provided a good example of Livingston\'s
strategy and the futility of attempts to quantify average case closure
rates.

> Rep. Livingston: \'Well, by my figures, between 1990 and 1995, with
> the money that we gave you, not the money you asked for, you had a 75
> percent increase in five years. Now, that is a pretty rapid increase.
> Now, tell me, with that increase, say 1992, how long did it take you
> to dispose of an average case. In 1994 how long did it take you to
> dispose of an average case: And, as you have projected your numbers,
> by 1996 how long will it take you to dispose of your average case?\'
>
> FEC Chairman McDonald: \'I think it is a very critical question and
> here is the answer. You can have figures that say just about anything.
> We could pursue what amounts to traffic ticket cases and we could turn
> them around quickly. We can bring statistics in here every year and
> show you that we can turn out 50 cases an hour if that is what you
> want us to do. But the minute we do that, everybody is going to
> complain these cases have no impact on the process.\'[^373]

The analysis of enforcement timeliness through the use of statistics is
also problematic for a number of other reasons. Firstly, individual MUR
files are difficult to analyse due to their size and may include
hundreds of pages of data. Secondly, cases often include diverse
violation profiles and multiple respondents. Respondents in each case
are dealt with as separate entities. Therefore, MURs held at the PRO are
not particularly amenable to analysis, as each may involve a plurality
of outcomes along different time frames. Additionally, if one examines
FEC Annual Reports, they fail to differentiate between generic types of
violation. Therefore, the performance data relating to the annual figure
of total cases resolved is almost meaningless. Late filers and complex
cases involving multiple respondents have been presented as an
aggregate. Again, one might offer an explanation for this strategy. The
FEC, perhaps even more so since the introduction of the GPRA, are
concerned about case numbers. Larry Noble, former General Counsel at the
FEC said:

> Larry Noble: \'On the one hand for greater law enforcement, you want
> to be able to focus on the large important cases, on the other hand,
> in terms of getting your numbers up, you want to focus on the lower
> cases. And people will tell you that there is a definite philosophy
> over the past couple of years at the FEC, \"let\'s get the numbers
> up.\" We used to have to give figures, when I was there. I\'m sure
> they still do about the average time a case was open. Well, you play,
> there are numbers games that get played. Every non-filer you put in
> that only took two or three months helps to drive your average down,
> versus the one case that takes three or four years. That is a
> dangerous game to play because you then don\'t take the three or
> four-year case and those are the cases that have real impact.\'[^374]

Therefore, this not only explains why the FEC does not present more
meaningful performance data, but also why Congress is so determined to
keep pressing the FEC to drive down average closure times. One might
reasonably assert that Congress is attempting to influence the type of
violations and cases the FEC ultimately enforces.

By focusing on respondents and not particular cases, Cain and Lochner
avoided some of the methodological problems alluded to. They examined 79
of the 527 MUR files closed during 1991 and 1993. Yet even this sizeable
task involved a relatively small sample frame over a two-year period.

[Table 2.3: Time to Resolution of Claims against
Respondents]{.underline}

  ----------------------------------- -----------------------------------
  TIME                                RESPONDENTS (% TOTAL)

  O-1 YEAR                            31 (16.7%)

  1-2 YEARS                           100 (53.8%)

  2-3 YEARS                           41 (22.0%)

  3-4 YEARS                           7 (3.8%)

  4 + YEARS                           7 (3.8%)

  TOTAL                               186 (100%)
  ----------------------------------- -----------------------------------

Source: Cain B & Lochner T (1999) 1915.

Although one might be cautious about drawing general conclusions from
the table, it does show that enforcement timeliness is not as slow as
Bob Livingston had described.

Journalists have also written about the poor record of timely
enforcement, but the individual cases they describe tend to be
unrepresentative and usually fail to explain the enforcement
difficulties surrounding the case. For example, Peter Beinart described
a 1988 case involving the Bob Dole campaign in which they had illegally
co-ordinated spending with a Political Action Committee, Campaign
America, in order to exceed spending limits in Iowa and New Hampshire.
He sets out how it took five years for the FEC to levy fines.[^375]
Another 1988 case involved George Bush allegedly accepting \$223,000 in
illegal contributions, something that resulted in his lawyers being sent
an admonishment letter three years after he had left office.[^376]
Finally, Brooks Jackson described a case involving Senator Alan Cranston
(D-CA) who was involved in colluding with the commodity trader Mark
Weinberg, to violate the FECA. The case focused on the lengthy delay
between detecting the alleged violations (December 1983) and when the
Commission began enforcement proceedings (October 1985). Weinberg
described Commission staff as \'knuckleheads\' and \'plodding
bureaucrats.\'[^377] Although these cases are anecdotal, there is a
universal perception that enforcement timeliness is poor. The 1999
PricewaterhouseCoopers audit supported this assertion. \'Interviewees
opined that the FEC takes too long in completing most compliance
activities-from enforcement initiation and disposition to completing
audits.\'[^378] A number of explanations will now be offered to account
for this bureaucratic failure.

The first explanation places the blame for slow enforcement on the
Commission\'s management practices. Internally identified violations and
external complaints are not immediately activated and worked but are
placed on the Central Enforcement Docket (CED) until staff/resources
become available. The first observation is that violations discovered by
RAD tend to move through the enforcement process quicker than those
brought to the attention of the Commission by outside complaints. This
is not surprising as external complaints often involve more complex
*malum in se* violations and therefore demand more time and resources to
resolve. However, the PWC report found that case activation times varied
widely for similar violations. For example, two \'chronically\' late
filers arising out of the 1996 election cycle were tracked through the
enforcement process. One was activated within 30 days and a conciliation
agreement was reached two months later. The other case took eight months
to activate and was not resolved until another five months had
elapsed.[^379] However, the implicit criticism that identical violations
ought to be resolved in similar time frames is flawed, as one respondent
may fight the Commission, whilst the other may be amenable to
conciliation. Yet the fact that some cases sit on the CED for months,
has worrying implications for enforcement timeliness. Former
Commissioner Potter described this problem:

> Trevor Potter: \'If you look at the Commission\'s cases, it isn\'t
> that a complaint comes in and the process starts. A complaint comes in
> and the case is rated and it is put in Siberia, perhaps to be thought
> out when an attorney is available or just to be closed, never being
> dealt with. So there is an initial time lag. As opposed to taking it
> right in. You\'d save a year on it if you assigned it immediately as
> opposed to putting it in the central enforcement docket. Also
> something that Jan (Baran) and I are both very conscious of is that a
> proceeding of the Commission has a very irregular pace. You get the
> complaint, you answer it and it goes away for a year. Then it either
> gets dismissed or it gets assigned. Then you get interrogatories, you
> answer them and you hear nothing for months. That is not the way most
> law enforcement agencies work. They get the answers, they look at
> them, they see you didn\'t answer all the questions, they ask you
> additional ones, it's an ongoing fluid process.\'[^380]

Criticism about these delays and the lack of communication/feedback from
OGC were recurring themes in interviews with the regulated community.
Donald McGahn, General Counsel at the National Republican Congressional
Committee commented:

> Donald McGahn: \'From what I\'ve seen, you send a letter and \'let\'s
> say\' it's a private case. You send a letter to opposing counsel, you
> get a reply the next day. You never get a reply the next day from the
> Counsels Office. Usually three days, five days, sometimes a week.
> Sometimes you send in something and you hear nothing back for months
> and months and then, all of a sudden, you get a letter responding to
> your first letter and you can\'t even remember sending the first
> letter. So you have to re-educate yourself on the entire file. And
> you\'re not really sure what\'s going on. So you have this \'cock
> ass\' process where you know you\'re in trouble but you really don\'t
> know why because it was so long since you spoke to them.\'[^381]

Larry Noble agreed that \'administrative processes within the agency are
cumbersome and lead to inefficiencies.\'[^382] The slow investigation,
administration and resolution of cases means that large numbers of cases
remain on the CED \'unworked.\' The poor record of active to inactive
case ratios poses a serious challenge to the goal of timely enforcement.
Although these figures show that the FEC has achieved their goal of
actively \'working\' 40% of their cases, the assumption that 60% might
remain \'unworked\' reflects the modesty of compliance goals.

[Table 2.4: Active to Inactive Case Ratios.]{.underline}

  ---------- ---------------------------- ------------------------- -------
             NUMBER [ACTIVE]{.underline}  NUMBER                    TOTAL
             % OF TOTAL                   [INACTIVE]{.underline} %  
                                          OF TOTAL                  

  CY 1995    139 47%                      155 53%                   294

  CY 1996    121 44%                      151 55%                   272

  CY 1997    98 33%                       198 67%                   296

  CY 1998    95 50%                       94 50%                    189

  CY 1999    119 62%                      74 38%                    193

  CY 2000    99 48%                       108 52%                   207

  AS OF      11O 55%                      93 45%                    203
  31.8.01                                                           
  ---------- ---------------------------- ------------------------- -------

Source: FEC internal memorandum held by the author, 17.9.01.

The budget request also sets out the goal of closing 225 enforcement
cases per year, 55% of which should be through substantive action.[^383]
Although the terminology and figures used in the budget request are
often repeated and meant as a general guide, what one FEC staffer
referred to it as, \'boiler plate language,\' it is clear that the OGC
has had some difficulty in handling its enforcement case load.[^384]
Although any number of variables can effect the ability of the OGC to
close cases, the figures do show that a significant number of cases are
left pending at the end of the year. This increases the number of cases
dismissed as stale, adversely effects the ratio of active to inactive
cases and reduces enforcement timeliness.

[Table 2.5: OGC Case Closure Record 1977-1990]{.underline}

+-------------+-------------+-------------+-------------+-------------+
| YEAR        | TOTAL       | CLOSED      | PERCENT     | PENDING AT  |
|             |             | DURING YEAR | CLOSED      |             |
|             | CASE-LOAD   |             |             | END OF YEAR |
+-------------+-------------+-------------+-------------+-------------+
| 1977        | 211         | 118         | 55.9        | 93          |
+-------------+-------------+-------------+-------------+-------------+
| 1978        | 574         | 401         | 69.9        | 173         |
+-------------+-------------+-------------+-------------+-------------+
| 1979        | 441         | 288         | 65.3        | 153         |
+-------------+-------------+-------------+-------------+-------------+
| 1980        | 407         | 193         | 47.4        | 214         |
+-------------+-------------+-------------+-------------+-------------+
| 1981        | 280         | 167         | 59.6        | 113         |
+-------------+-------------+-------------+-------------+-------------+
| 1982        | 226         | 133         | 58.8        | 93          |
+-------------+-------------+-------------+-------------+-------------+
| 1983        | 196         | 118         | 60.2        | 78          |
+-------------+-------------+-------------+-------------+-------------+
| 1984        | 361         | 189         | 52.4        | 172         |
+-------------+-------------+-------------+-------------+-------------+
| 1985        | 429         | 292         | 68.1        | 137         |
+-------------+-------------+-------------+-------------+-------------+
| 1986        | 328         | 185         | 56.4        | 143         |
+-------------+-------------+-------------+-------------+-------------+
| 1987        | 404         | 233         | 57.7        | 171         |
+-------------+-------------+-------------+-------------+-------------+
| 1988        | 407         | 187         | 45.9        | 220         |
+-------------+-------------+-------------+-------------+-------------+
| 1989        | 438         | 237         | 54.1        | 201         |
+-------------+-------------+-------------+-------------+-------------+
| 1990        | 396         | 159         | 40.2        | 237         |
+-------------+-------------+-------------+-------------+-------------+

Source: Centre for Responsive Politics
[www.opensecrets.org](http://www.opensecrets.org/) 3.3.01

[Table 2.6: OGC Case Closure Record 1996-2001]{.underline}

  ---------- ---------- ---------- ---------- ---------- ---------- ----------
  YEAR       1996       1997       1998       1999       2000       2001

             229        244        213        150        140        170
  ---------- ---------- ---------- ---------- ---------- ---------- ----------

Source: e-mail enquiry to FEC Press Office, received 24.04.02

Whilst poor management practices are a contributory factor in explaining
why the OGC has been unable to improve enforcement timeliness, other
factors are at least as important. For example, from1980-1996 campaign
finance spending grew by 256.5%, yet staffing levels only increased by
14%. The table below sets out the correlation between disbursements and
staffing.

Table 2.7: Growth contrast between overall spending and FEC staffing
level.

  ------------------------ ------------------------ ----------------------
  FEC ELECTION CYCLE       TOTAL SPENDING           ELECTION YR STAFF

  1978                     \$386 MILLION            223

  1980                     \$768 MILLION            270

  1982                     \$795 MILLION            226

  1984                     \$1.259 BILLION          230

  1986                     \$1.094 BILLION          229

  1988                     \$1.607 BILLION          252

  1990                     \$1.115 BILLION          241

  1992                     \$2.051 BILLION          266

  1994                     \$1.708 BILLION          293

  1996                     \$2.738 BILLION          308

  1998                     \$2.2-2.3 BILLION EST.   302
  ------------------------ ------------------------ ----------------------

Source: Thomas S & Bowman J (2000) Symposium: \'Regulating Politics,
Federal Election Commission, Obstacles to Effective Enforcement of the
Federal Election Campaign Act,\' *Administrative Law Review* **52** (2)
580-581.

One might argue that the Commission\'s workload has outgrown capacity.
The increase in spending means that more transactions occur, more
reports have to be filed and more complaints are made. Additionally, as
electoral competition has stiffened, some in the regulated community
have attempted to \'push the envelope.\' This term refers to a
willingness to operate closer to the margins of legality. What Larry
Noble referred to as \'playing in the grey area.\'[^385] This and the
growth in numbers of respondents per MUR, have lead to increasing case
complexity and further demands on available resources. Some of the
larger cases may involve over one hundred respondents.[^386] The PWC
audit noted that even when case numbers declined, case complexity had
increased as a consequence of growing respondent numbers. \'As the
number of respondents increases per case, each investigative step in the
enforcement process consumes an increasing amount of resources to move
the case forward.\'[^387]

Table 2.8: Monthly average number of respondents per pending case
represented

> through financial years 95-01.

+-----------------------+---+---+---+---+---+---+-----------------+
| FINANCIAL YEAR        | 9 | 9 | 9 | 9 | 9 | 0 | AS OF 31.8.01   |
|                       | 5 | 6 | 7 | 8 | 9 | 0 |                 |
+-----------------------+---+---+---+---+---+---+-----------------+
| MONTHLY AVERAGE       | 5 | 5 | 6 | 1 | 1 | 1 | 7.9             |
| NUMBER OF             | . | . | . | 0 | 5 | 3 |                 |
|                       | 1 | 0 | 4 | . | . | . |                 |
| RESPONDENTS PER       |   |   |   | 5 | 6 | 1 |                 |
| PENDING CASE          |   |   |   |   |   |   |                 |
+-----------------------+---+---+---+---+---+---+-----------------+

Source: FEC memorandum held by the author 17.9.01.

Table 2.9: Monthly average number of respondents per pending case
represented through

95-01 as aggregates.

  -------------------------- ------ ------ ------ ------ ------ ------ ------------
  FINANCIAL YEAR             95     96     97     98     99     00     AS OF
                                                                       31.8.01

  MONTHLY AVERAGE OF TOTAL   1537   1416   2071   2367   2968   2454   1597
  RESPONDENTSIN PENDING                                                
  CASES                                                                
  -------------------------- ------ ------ ------ ------ ------ ------ ------------

Source: FEC memorandum held by the author 17.9.01

The final impediment to timely enforcement is the bureaucratic,
cumbersome and labour-intensive enforcement process that was written
into the FECA. The multiple stages designed to provide respondents with
procedural protections also mandated specific waiting periods. Although
this helps to prevent the use of arbitrary regulatory power in this
First Amendment area, it also prevents the timely resolution of
enforcement cases. The more basic stages of this process were alluded to
in the introduction to this section. However, Thomas and Bowman have
summarised how a \'routine matter\' might work its way through the
enforcement mechanism. Their table includes 17 stages and takes 362 days
to complete.[^388] Therefore, poor enforcement timeliness can only be
accurately explained by a triage approach. Agency failures, whilst
important, may be less significant when compared to other factors. The
behaviour of the regulated community, staffing constraints and the law
itself all seriously hinder timely enforcement.

Despite the inability of the Commission to resolve enforcement matters
within an election cycle, two new programmes have been initiated to
improve this record. The Administrative Fine and Alternative Dispute
Resolution (ADR) programmes both attempt to improve the timely
enforcement of lower level violations. These programmes are discussed
below.

**[The Administrative Fine Programme]{.underline}**

The administrative fine programme was designed to increase timely
disclosure, expedite the enforcement of late and non-filing cases and
\'free up\' resources in the OGC.[^389] Whilst some evidence would
support the successful achievement of the first two objectives, it is
less clear if the programme will enable the OGC to process higher
numbers of *malum in se* violations.

The programme was established by the Treasury and General Government
Appropriations Act 1999 and came into force July 14 2000. Prior to the
introduction of this pilot project, late and non-filers were dealt with
through the multi-stage traditional arrangements described above. In
order to resolve a case, the respondent had to be willing to enter into
a conciliation agreement, admitting the violation and agreeing to pay a
civil penalty. Under the administrative fines programme, cases can be
resolved much more quickly because fewer stages are involved and
respondents are not afforded the opportunity to drag out the process
through conciliation. It is now a faster adjudicatory process, though
due process protections have been built into the mechanism. For example,
four of the six Commissioners still have to find \'reason to believe\'
that the respondent violated the law. Additionally, respondents have the
right of appeal, something the FEC refers to as the \'challenge
process.\' The respondent may submit supporting documentation to an
independent reviewing officer who then makes a recommendation to the
Commission.[^390] As of January 31 2002, the Commission had received 158
challenges, completed 111 and upheld the civil penalty in 80
cases.[^391] The Commission calculates the level of fine by considering
the following criteria:

1.  election sensitivity of the report

2.  if the committee is a late-filer, the number of days late

3.  if they are a non-filer

4.  the amount of financial activity on the report

5.  number of prior civil money penalties for reporting
    violations.[^392]

A FEC press release dated January 11 2002 set out that 311 cases had
been resolved through the administrative fines programme, with \$425,736
levied in fines. However, when the independent reviewing officer was
interviewed in October 2001, she confirmed that 52 of those 311 cases
had been referred to the U.S. Treasury as \'uncollectables\' and three
cases were being litigated in U.S. District Court.[^393] When asked
about the high level of uncollected fines Larry Noble commented:

> Larry Noble: \'The problem with political campaigns is that they are
> sometimes million dollar businesses, but clearly several hundred
> thousand dollar businesses that exist for a short period of time, then
> everybody goes away. They\'re transient. Often the Treasurer is a
> volunteer, sometimes they\'re a college student who didn\'t realise
> that they would have to pay a \$3,000 fine. So that's a problem, how
> far you take enforcement?\'[^394]

Despite the high number of challenges and the problem of uncollected
fines, Commissioner Thomas noted that:

> Commissioner Thomas: 'Prior to its introduction, the Commission was
> only able to handle maybe 30 cases of late and non-filers per election
> cycle. Now we process over 400.\'[^395]

This would support the view that enforcement of these generically
low-level violations has improved significantly. Additionally, data
suggests that the fines system may have improved the enforcement of more
timely disclosure. Republican election lawyer Jan Baran said it, \'had
raised consciousness and conscientiousness about filing on time.\'[^396]
Donald McGahn, General Counsel at the NRCC, described the programme as
changing the \'atmospherics\' in the regulated community.[^397] Although
data might also support Shawn Werth\'s assertion that the programme has
resulted in more timely disclosure, the statistical improvements are not
striking.

[Table 2.9.1: Percentage of Reports Filed Late]{.underline}

[Type of Report 1996 1998 2000]{.underline}

July Quarterly 25% 25% 18%

October-Quarterly 25% 24% 22%

12-Day Pre-General 18% 17% 13%

30-Day Post-General 22% 22% 17%

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Source: FEC Annual Report (2000) 13.

More recent data published by the FEC indicates a more dramatic
improvement.[^398] The 2003 budget request asserts that only 11% of
year-end reports were filed late in 2000, compared with 24% in 1998 and
22% in 1996. Yet it is difficult to establish a causal relationship
between improvements in disclosure timeliness and administrative fines.
The administrative fines pilot had preceded the introduction of
mandatory electronic filing for most committees. Although the mandatory
system only became effective in January 2001, the regulated community
had already been preparing for its introduction.[^399] Although capital
intensive, electronic filing is easier, more convenient and is more
likely to result in timely disclosure as it removes all issues related
to the reliability and timing of postal delivery services. Alex Vogel,
General Counsel at the NRSC, said that he thought the improvement in
timely disclosure was probably due to a 50/50 combination between
administrative fines and electronic filing.[^400] Despite its unproven
deterrent effect and the issue of \'uncollectables,\' Republicans and
Democrats have universally welcomed the programme. Republicans in
particular, have tended to have a philosophical preference for the
\'bright-line,\' meaning certain/clear regulation, and see the fines
system as a good example of that. Their support for the fines programme
might be contrasted with their hostility towards expansive enforcement
in uncertain, disputed areas of law. Bob Bauer the leading Democratic
Party election lawyer also welcomed the introduction of administrative
fines. He supported the programme as it took *malum prohibitum*
violations out of the more formal, adversarial enforcement process. He
commented:

> Bob Bauer: \'You fail to file 48 hour reports, even though the money
> involved is, \'a\' no interest to anyone and \'b,\' it appears in your
> next report. It has to appear on your next report, no one disputes
> that it has to be eventually disclosed to the public, and the next
> thing the person knows is that they are being interrogated by a
> Shining Path guerrilla, in a room with a single light bulb.\'[^401]

Finally, although the administrative fines programme has expedited the
enforcement of late and non-filer violations and has been welcomed by
lawyers from both Parties, its ability to \'free up\' resources is
uncertain. Interviewees were generally sceptical about the
resource-saving attributes of the administrative fines system. Leading
GOP lawyer Jan Baran said that he was \'dubious that resources will be
freed up.\'[^402] Alex Vogel, General Counsel at the NRSC, said, \'I
don\'t think resources are going to be freed up.\'[^403] Two serving
Commissioners suggested that the OGC had not previously spent a great
deal of time and resources enforcing the type of violations addressed by
the administrative fines programme. When asked if the fines programme
would \'free up\' significant resources for the OGC, Commissioner Mason
replied:

> Commissioner Mason: \'What I expect is a relatively small effect. I
> don\'t think late and non-filers were a huge workload in the General
> Counsels Office to begin with. Maybe it was 10%, maybe it was 20% but
> never more than 20%.\'[^404]

One might argue that the fines system just increases the Commission\'s
capacity to deal with a larger number of disclosure violations than it
had previously. This means that firstly prior to the introduction of the
administrative fines programme, relatively few disclosure violations
were substantively enforced and secondly that whilst the programme may
have improved timeliness, it may generate more work for the Commission,
not less. However, Larry Noble former General Counsel at the FEC
disagreed with Commissioner Mason:

> Larry Noble: \'The OGC may have put a disproportionate effort into
> enforcing disclosure in the past. The time the OGC was spending doing
> late filers and non-filers was ridiculous. But that is one of the
> reasons why the Commission has got the administrative fines programme,
> which I think is very important because it does allow you to put less
> resources into it.\'[^405]

The historical reputation of the Commission as a \'nit picker\' might
suggest that the OGC did spend a significant amount of time, staff and
resources enforcing *malum prohibitum* violations. Additionally, as
these cases would have improved their performance statistics, it might
be unwise to conclude that minor violations only played an insignificant
part in OGC activities prior to the introduction of the administrative
fines programme. However, as the programme is still in its infancy, the
FEC has as yet been unable to determine if any resources have been
\'freed up.\'[^406]

**[Alternative Dispute Resolution (ADR) Programme]{.underline}**

The Alternative Dispute Resolution Act 1996 required all Federal
Agencies to promote the use of ADR.[^407] In their 2001 Report to the
President, the Interagency ADR Working Group described the formal
mechanism for resolving disputes as overburdened and slow. They also
criticised the long periods of silence, the lack of face-to-face
meetings and the negativity that is generated between those
involved.[^408] In October 2000, the *Federal Register* presented ADR as
a solution to many of the problems inherent in traditional enforcement
regimes. The benefits of ADR included \'savings of time and money, party
satisfaction with the process and outcomes, high settlement rates and
improved relationships.\'[^409]

The FEC ADR pilot project was approved by the Commission on July 25 2000
and began on October 1 2000.[^410] The programme aims to promote
compliance with the FECA by encouraging settlements outside the more
formal enforcement process. Although specific performance goals remain
confidential, the broad objectives are to resolve complaints and
internal audit referrals faster, reduce costs and reach agreements that
are mutually satisfactory to the Commission and respondents. Before a
case can enter ADR, the OGC and the ADR Office review it.[^411] Suitable
cases can be referred either by OGC or through assignment by the
Commissioners. The process is based around bilateral negotiations
between the respondent and a representative of the ADR Office. However,
should this fail to resolve the matter, the Commission will pay for an
independent mediator from the private sector to help bring the case to a
conclusion. If both approaches fail, the case is returned to the OGC to
enforce.[^412]

By September 2001 the ADR pilot had reached 34 agreements arising from
19 complaints, audit referrals and cases filed with the Commission.
Those agreements attracted \$30,367 in civil penalties. When interviewed
in October 2001, Allan Silberman said that the number of cases
successfully resolved through ADR had increased to 27 cases, which
involved 41 separate agreements.[^413] Although the problems with
average case closure statistics have already been discussed, the ADR
average, at 86 days, was substantially more timely than the traditional
enforcement process.[^414] However, the ADR programme is not without
it's critics. Firstly, the ADR model may not be appropriate for this
particular enforcement environment. For example, participants need to
see an advantage in settling the case through ADR and a disadvantage by
not doing so. One might argue that this is not the case under the
current FEC system. ADR has not delivered many quantifiable benefits for
the Commission, something important under the GPRA. Few cases have been
resolved and the totality of civil penalties levied would indicate more
of a symbolic function rather than a sanction. The types of cases going
through ADR are often so insignificant that there is little advantage
for the respondent in volunteering for the programme. Therefore, if one
declines ADR, the most likely outcome will be that the Commission
disposes of the case without any substantive action. GOP lawyer, Jan
Baran commented:

> Jan Baran. \'My impression is that they are handling relatively minor
> cases and my further impression is that if they had not indicated a
> willingness to participate in ADR, the relatively minor cases would
> probably evade enforcement entirely. If that is true, and ultimately
> we will have some indication of that, then ADR will be seen as a way
> to expand enforcement of lower level cases in some fashion. Or people
> will increasingly be aware that there is no percentage involved in
> volunteering for ADR because, chances are, the case will never get the
> Commission\'s attention.\'[^415]

Alex Vogel, General Counsel at the NRSC, was also critical of the way
the FEC was attempting to use ADR:

> Alex Vogel. \'Generally speaking, I think it's a good idea. But you
> know what the problem was? They would send us letters and say this
> looks like a good candidate for ADR and it would be a case where we
> didn\'t think we did anything wrong. I\'ve got a candidate right now,
> John Ensign (R-NV). Last time he ran, someone filed a complaint and
> said the Ensign campaign took an awful corporate contribution because
> an Ensign sign was in an auto dealership window. I responded and I
> said \"look the Ensign campaign gave out 300,000 signs, they cannot
> possibly be responsible for the fact that some person put that in an
> auto dealership. It\'s no way a corporate contribution.\" Its not and
> it's the dumbest thing I\'ve ever heard. The FEC sent me a letter and
> said would you like to enter into ADR? And I said I\'m not going to
> settle this! We didn\'t do anything wrong. I didn\'t hear anything for
> months. Yesterday the Staff Director called me and said we\'d really
> like to get into ADR on this one.\'
>
> Author: \'You know why, because it\'s also part of a numbers game.\'
>
> Alex Vogel: \'Oh yes, absolutely and ADR is very good at pumping up
> the numbers. And he\'s the cheerleader. I said, \"Jim, why am I going
> to settle a case when I didn\'t do anything wrong, just so you can say
> we\'ve got another ADR case and say now we\'ve got the NRSC in ADR.\"
> He said that ADR can be resolved with no violation. Well that's the
> dumbest thing I\'ve ever heard. Why would I want to enter into
> negotiations if there\'s no violation? Why don\'t you just find that
> there was no violation? You\'ve got the Staff Director calling a
> national party committee, begging to put cases in ADR that aren\'t
> worth a nickel. It's a complete false structure of ADR.\'[^416]

The largely trivial nature of the violations resolved through ADR has
meant that the more experienced members of the regulated community have
remained unenthusiastic about it. As Jan Baran commented, \'there\'s no
percentage in it.\'[^417] This is significant because, as members of the
political community remain unwilling to enter the process, numbers will
remain at their current levels and aggregate timeliness will not improve
as a result of the programme. Those who might be willing to enter ADR
are likely to be the uninformed, who might think it's a good idea to
avoid imminent enforcement, the poor who cannot afford a lawyer, or
those who just want to clear a matter up for their own peace of
mind.[^418] However, although the programme does appear limited in its
ability to improve the larger picture of enforcement timeliness, the
programme does have other advantages. One needs to appreciate that the
cultural mindset of those working in ADR is different to that of the
OGC. Unlike the adversarial nature of the OGC activities, where
litigation and civil fines are important, those in ADR are more
interested in improving compliance through education. For example, many
ADR agreements stipulate that respondents must attend a training seminar
sponsored by the FEC. The ADR Director commented: \'Rather than just
write out a cheque, they actually have to go to a seminar, a three-day
seminar to learn about the FECA.\'[^419] Other educational efforts might
require respondents to circulate documents to their staffs, which set
out particular FECA mandates. Although these educational initiatives are
worthy, it is difficult to see how they might be quantified in any
future performance assessment. Trevor Potter, GOP lawyer and former
Republican Commissioner, suggested that the \$348,000 dedicated to the
ADR pilot programme might be better spent in establishing a special
strike team in the OGC. He commented:

> Trevor Potter. \'Three or four attorneys, a good leader and let them
> loose on the FEC caseload. Pick the high priority cases and run them
> through. I recognise that Congress not only didn\'t appropriate money
> for those purposes but specifically made sure they put them in ADR,
> which in many senses is a non- threatening programme as opposed to the
> strike force approach.\'[^420]

One might argue that both ADR and the Administrative Fines Programmes
are non-threatening initiatives. Yet the two programmes do not have
equal value. The fines programme has been worthwhile as it appears to
have had some impact on improving timely disclosure and those cases that
involve late and non filers no longer consume OGC resources.[^421] The
utility of ADR is much less certain. The \$348,000 cost of the one year
pilot, the low level of usage, the apparent desperation of the Staff
Director to attract willing respondents and the largely inconsequential
violation profile all undermine the value of the programme. However, as
both initiatives have a low political impact on the regulated community,
it is likely that Congress will continue to support them.[^422]

**[Enforcement Fairness]{.underline}**

**[Introduction]{.underline}**

The second performance goal to be examined is that of fairness. The
regulated community has defined fairness in different ways. The two main
Parties have tended to stress the importance of enforcement that treats
them equally. Therefore, fairness becomes an issue related to ensuring
non-partisan enforcement. Cain and Lochner argue that members of
Congress often suggest that FEC enforcement fails because it is biased
and politically partisan. Daniel Ortiz referred to this issue in his
introduction to a 1994 FEC symposium. He commented:

> \'The closer panelists were affiliated with the major political
> Parties, the more they worried over the Commission\'s lack of
> independence from political players on the other side.\'[^423]

An alternative definition of fairness concerns the Commission\'s
respondent and violation profile. The criticism has been that the FEC
has sought to enforce the law in an unfair way against less powerful
minor Parties, their candidates and other \'small fry\' within the
regulated community. John Bolton, former under-secretary of State,
referred to these entities as the \'widows and orphans\' of the
political community.[^424] Daniel Ortiz commented:

> \'The outsiders, on the other hand, worried more about the
> Commission\'s lack of independence from the established Parties in
> general. To the first group, in other words, independence meant
> bipartisan control, whereas, to the other group, that view represented
> the exactly the problem.\'[^425]

Conversely the FEC has also been criticised for its unwillingness to
enforce the law against the rich or powerfully placed. \'Outsiders\'
explain this by alluding to the unequal political influence of
respondents and their ability to marshal top class legal talent against
the Commission. They further argue that this affects the type of
violations the Commission has been willing and able to address. For
example, it has been criticised for being overly zealous in the
enforcement of *malum prohibitum* violations, which tend to be committed
by inexperienced, less significant players. And for being overly lenient
in the enforcement of *malum in se* violations, which are said to be
committed by the more experienced, powerful players. One particularly
important management tool that affects the decision-making process in
the OGC is the enforcement priority system (EPS). This \'organic\'
system was introduced in 1993 to bring about a more rigorous method of
allocating enforcement resources.[^426] The EPS determines which cases
are activated, which remain unworked and which cases are dismissed. This
system will be examined and assessed as it has a direct effect on the
fairness of enforcement. However, in order to maintain the
organisational rigour of this discussion, the issue of enforcement
fairness will be only discussed as it relates to the OGC and not the
Commission. The broader issues of \'regulatory capture\' are dealt with
in the later chapters on Commissioners and Congress.

**[Fairness Defined As Non-Partisan Enforcement]{.underline}**

Ginsberg and Shefter have asserted that members of the regulated
community often attempt to use allegations of wrongdoing to attack their
political opponents through the R.I.P. strategy, though there is little
evidence to show that either of the Parties has successfully co-opted
the FEC in order to gain an advantage.[^427] However, groups on the
right have long criticised the Commission for \'tilting to the
left.\'[^428] In 1980 Richard A. Viguerie, an election consultant
specialising in conservative issues commented:

> \'The FEC obviously is populated by liberals. It\'s a potentially
> dangerous thing and ought to be abolished.\'[^429]

More recently, Bob Livingston referred to Larry Noble as the \'Ralph
Nader regulator,\'[^430] the charge being that he had exercised his
discretion in the OGC in a way that Republicans either disapproved of,
or felt was particularly damaging to their interests.[^431] In support
of the politically partisan hypothesis, Cain and Lochner refer to a 1994
comment made by Elizabeth Hedlund, a public interest advocate and former
Director of FEC Watch, who described the Commission as partisan.
However, her later explanatory comments revealed that she was referring
to Commissioners, not the bureaucracy or the OGC.[^432] As a public
interest advocate, her views were probably better represented by
comments made in another panel discussion held that year when she
criticised the agency for being an equally balanced
Democratic-Republican Commission.[^433]

Evidence to support the partisan hypothesis is weak. The Commission was
deliberately structured as a bipartisan agency to \'prevent it from
becoming the vehicle for partisan purposes\'[^434] and the Act
\'provides that no more than three members of the Commission may be
affiliated with the same political party.\'[^435] Six Commissioners,
three Democrats and three Republicans have traditionally been appointed
and confirmed by the Senate, with four votes required to authorise any
substantive action.[^436] Additionally, not only does the agency
structure protect respondents from partisan enforcement, Larry Noble,
the General Counsel at the FEC, has also attracted criticism from both
major Parties.[^437] The fact that Larry Noble has proved to be equally
unpopular with Democrats and Republicans would suggest a non-partisan
enforcement ethos at the top of the OGC management structure. This
thesis was supported by the PWC Audit, which found that disclosure and
compliance activities were executed without partisan bias.[^438] In
their study, PWC carried out a telephone enquiry of 353 randomly
selected filers. They concluded that there was a general perception that
Commission staff acted in an impartial and independent manner.[^439] Of
the 14% of filers who had some contact with enforcement staff, 73%
agreed that they acted in an independent and non-partisan manner.[^440]
Therefore, the bipartisan structure of the Commission and the
even-handed treatment of both Parties by the General Counsel have
ensured that there is little evidence to support the politically
partisan hypothesis.

**[Unfair Discrimination Against the \'Widows and
Orphans\']{.underline}**

**[Of the Political Community.]{.underline}**

During the 1970s, the Commission was criticised by parts of the
regulated community and the courts for enforcing the law in a way that
treated minor candidates, small donors and grass roots organisations
unfairly. A number of these allegations were described in testimony
given before the Committee on House Administration during the
ninety-fifth Congress. The hearings discussed a bill to amend the FECA,
which would have provided public funding for Congressional elections.
Mary Meehan, Treasurer of the Committee for a Constitutional Presidency,
who opposed the Bill, referred to the *Le Roy B. Jones v Unknown Agents
of the Federal Election Commission* (1977) case as an example of skewed
enforcement. She testified how FEC field investigators had harassed Le
Roy Jones, a contributor to fringe candidate Lyndon LaRouche\'s 1976
presidential campaign. Jones was a 59-year-old retiree with a long
history of heart attacks. Jones testified that Keith Vance, a senior
investigator with the FEC, had called at his home at 7.45 am, demanded
bank records and had made intimidating threats.[^441] Vance was alleged
to have said:

> \'If you don\'t give me the information I ask for, you could get
> sentenced up to ten years in jail and be given a \$10,000 fine.
> You\'ve got a nice house here, you wouldn\'t want to lose it would
> you?\'[^442]

Although Vance offered a different version of the conversation, Jones
immediately handed over his Federal income tax records, signed a
document allowing investigators to inspect his bank records and then
visited his doctor.[^443] Another case that Meehan referred to was that
of John Adams, a 61-year-old retiree who was partially disabled from an
injury sustained in the Second World War. Adams had entered and won the
1976 New Hampshire Republican Primary but was defeated in the general
election by the Democratic incumbent. Meehan then described how the FEC
had sent him threatening letters about his failure to file candidate
reports. Adams, whose only income was a \$173 per month Navy disability
pension, replied to the Commission in September 1976, calling collect as
he had no money. He left a message for the General Counsel saying that
\'he had asked for no money, had received none and had spent none\' on
his campaign. Later that year, the FEC filed suit in District Court
against Adams asking that he be fined up to \$5,000. After filing a
default motion, the case went to court in January 1977. A senior FEC
attorney was despatched to argue the case. The Judge found in favour of
the FEC, fining Adams \$100 and ruling that he disclose the requisite
information. However, the Judge criticised the FEC attorney, asking,
\'if he didn\'t have any better things to do with his time?\' Further
research revealed that the Judge\'s attitude towards the FEC was much
more aggressive than Meehan had suggested. A number of interviewees
indicated that he had said, \'I will rule in your favour, but never come
back to this state again!\'[^444] Adams failed to pay the fine or attend
court as he was living in an Old Soldiers\' Home in Massachusetts.[^445]

Meehan commented:

> \'The FEC was advertised by Common Cause as a genuinely independent
> agency, which would enforce the law without fear or favour. Instead,
> it has proved to be the neighbourhood bully of American politics,
> picking on the little guys and running away when the real toughs come
> on the scene. The FEC has, in fact, been trampling all over the Bill
> of Rights when dealing with the little guys.\'[^446]

When asked if the FEC enforces the law unfairly against \'small fry,\'
Jan Baran replied that it was an accurate criticism at times. He said
the issue came up regularly and offered two explanations why it was such
an enduring perception:

> Jan Baran: \'There have been episodes where the agency has sued people
> that really seemed to be on the fringes of politics, that are not
> particularly important and there is no legal principle
> involved.\'[^447]

Mr Baran supported this assertion by referring to some of the older
cases described by Meehan *et al*. One might argue that Jan Baran was
referring to some of the errant practices carried out during the
Commission\'s infancy.[^448] However, Jan Baran then explained that
inconsequential members of the regulated community might still find
themselves being sued by the Commission if the agency wished to clarify
a point of law.

> Jan Baran: \'Sometimes the Commission will go against some
> organisation if they feel there is a principle at stake. So you\'ll
> see them suing a group like Christian Action Network, which is an
> obscure fundamentalist religious organisation in the mountains of
> rural West Virginia that ran some television advertisement in Richmond
> about the position of Al Gore and Bill Clinton on homosexual rights.
> They think it's a very important case to bring because they want to
> experiment with their express advocacy theories.\'[^449]

The 1996 Christian Action Network case involved media messages clearly
intended to criticise Clinton and Gore\'s liberal policies on
homosexuals and was commissioned with the intention of influencing
voters in the 1992 election. However, as it failed to \'expressly
advocate\' the election or defeat of a clearly named candidate, it was
protected under the First Amendment. The FEC lost the case and the
Christian Action Network evaded Federal regulation.[^450] Evidence tends
to support the assertion that the FEC enforces the law against \'widows
and orphans\' if legal principle is involved. One of the earliest
examples of this was a 1980 case involving the Central Long Island Tax
Reform Immediately Campaign. This non-profit organisation favoured lower
taxes and smaller government. CLITRIM produced a pamphlet that set out
the voting record of their local Congressman on this issue. The results
showed 21 votes for higher taxes and bigger government and three votes
for lower taxes and smaller government. The FEC sued CLITRIM alleging
that it had used \'express advocacy,\' failed to file and failed to
publish the requisite disclaimer notice. However, the pamphlet only cost
\$135 and failed to mention any federal election or the political party
of the Congressman. The FEC lost the case and the late Judge Irving R.
Kaufman of the U.S. Court of Appeals was particularly critical of the
FEC. He commented:

> \'The insensitivity to First Amendment values displayed by the Federal
> Election Commission in proceeding against these defendants compels me
> to add a few words about what I perceive to be the disturbing legacy
> of the Federal Election Campaign Act. The defendants in this case
> (CLITRIM) undertook to spend the modest sum of \$135 for the purpose
> of preparing and circulating to their fellow citizens a pamphlet
> addressed to the issue of tax reform, specifically advocating their
> belief in the necessity of significant reductions in current taxation
> levels. Further, the pamphlet assessed the legislative record of their
> Congressman on issues implicating taxation and government spending. It
> is this conduct that the FEC seeks to \'enjoin\' because the
> defendants chose not to register their activity with the federal
> government. I confess that I find this episode somewhat perverse. It
> is disturbing because citizens of this nation should not be required
> to account to this court for engaging in debate of political
> issues.\'[^451]

The historical action taken against \'small fry\' alluded to by Jan
Baran *et al* was not a conscious management decision to target minor
players; more likely, it was the result of overzealous field
investigators and the insensitivity of an agency in its infancy.
However, the determination of the agency to pursue low-profile \'widows
and orphans\' where a legal issue is at stake, should not be
underestimated. Yet others have argued that the reason why the FEC
enforces the law against so many grass roots organisations and minor
candidates is that they tend to commit far more frequent and easily
detectable violations than their more experienced counterparts. For
example, in 1979, Neil Staebler, a former Commissioner and Democratic
Party appointee commented:

> \'We had a study made by Peter Hart and Richard Wirthlin two years
> ago. They found that the campaigns most likely to have trouble with
> the forms were the very tiny ones, those of the minority party or
> vanity candidates, where there was not much manpower available and
> where the candidate, the candidate\'s wife, and a few friends tried to
> do everything.\'[^452]

Over twenty years later, former Commissioner Trevor Potter described a
similar scenario. He commented:

> Trevor Potter: \'By and large, the Commission will go after anyone for
> a clear-cut violation. You fail to file a report, it doesn\'t matter
> who you are. However, it tends to be more widows and orphans who
> commit the clear-cut violations. Because the better funded committees,
> the Parties etc, have lawyers and accountants whose job it is to make
> sure that they file their reports on time, that they don\'t report
> taking a corporate cheque if they\'re not allowed to, simple
> violations. So by that wonderful French phrase, both the rich and the
> poor can sleep under the bridges of Paris. There is a consequence of
> enforcing the law flatly on these technical areas. The consequence is
> that you tend to get more widows and orphans. You tend to get more of
> the smaller committees who didn\'t understand the rules, didn\'t have
> the money to pay an accountant, never thought to hire a
> lawyer.\'[^453]

When interviewed, Donald McGahn offered a more comprehensive explanation
why minor players were more likely to attract the attention of the OGC.
This explanation relates to the erroneous behaviour of inexperienced
entities, the financial and professional advantages of more experienced
players and the desire of the OGC to maintain performance by \'keep
their numbers up.\'[^454]

> Author. \'The FEC has been criticised for going after the small fry,
> what one commentator described as the \'widows and orphans\' of the
> political community. How would you respond to this view, and why has
> it been such an enduring perception?\'
>
> Donald McGahn. \'I would say there is a lot of truth in it. In my
> experience, it\'s the first-time vanquished candidate who\'s sloppy
> who ends up paying the fine. Now is that because the FEC is picking on
> the little guy? I don\'t know. It\'s probably an over-simplification.
> The fact is that, if you are a well-entrenched incumbent, you probably
> have professionals running your campaign. You\'ve done it before, you
> know the pitfalls. You\'re not gonna make the first time rookie
> mistakes. So that could be one explanation. Another explanation is
> that experienced guys are smart enough to know a problem when they see
> it and pull in an expert, whether it be an attorney or an accountant.
> They deal with the reports analysts at the FEC properly and they
> resolve the issue right there, it doesn\'t go any further. Whereas the
> first timers don\'t do that. Sometimes they let things fester. They
> leave blanks on their reports, they don\'t get the paperwork for
> reattribution to redesignation, and they end up getting a full-scale
> field audit. You really don\'t see people who have been here more than
> two years getting audited but what you do see are the first-time
> campaigns getting audited. When you do an audit, you\'re gonna find
> something wrong and when they find something wrong you\'re probably
> gonna pay a fine. So that could be one explanation. Also, assuming you
> had a well entrenched incumbent and a new-comer who both get in
> trouble for the same fine, the new-comer is not going to be able to
> raise money, so he\'s not going to be able to pay an attorney. He\'s
> left on his own, he doesn\'t understand the FEC process, which frankly
> is bizarre. A lot of it is word of mouth, passed on through oral
> tradition, as to who the lawyers are and sort of how to navigate them
> and their bureaucracy. So they are not really equipped to deal with
> things, so they\'re not in the same situation. It doesn\'t mean that
> the FEC is picking on the little guy, but on the other hand, if you
> are an FEC Counsel and you\'ve got to go against committee Chair X,
> who\'s got the guy who\'s done the past two Republican Presidential
> elections as counsel defending him and he knows the guy is \'gonna rip
> you a new one\' every time you call him, versus some guy sitting in
> the middle of nowhere who\'s sitting at his kitchen table with his
> wife, scared of the auditors of the FEC. Which is an easier way to
> close a file and get a fine? It\'s incredibly apparent. Your ability
> to bring home the bacon matters, and it\'s a hell of a lot easier to
> bring home the bacon and get somebody who has nobody to stand up for
> him than someone who does.\'[^455]
>
> Author. \'I\'ve noticed that FEC performance indicators all seem to be
> quantitative, rather than qualitative. Therefore it\'s just the
> numbers of cases. I don\'t think that is very helpful because sure,
> you may have a fairly large number of cases dealt with, but those
> cases may be incredibly simple, reporting violations, things like
> that, and many of the more substantive or difficult cases just don\'t
> get looked at.\'
>
> Donald McGahn. \'I would actually agree with that, it\'s the same
> point I have just made. You pick the path of least resistance of how
> you are going to move up the office and if that is pure numbers, rack
> up the numbers. You know, we have a College football rating system in
> this country which people criticise for the same reason. There\'s top
> ten teams who play nobody all year until they get to a Bowl game.
> Sure, if that\'s how you get ranked, play cream puffs all year. Same
> things with the Counsel\'s Office: take on the easy guys. You know 69
> and 3, but the 3 that you lost were on national television. In boxing,
> 50 and nothing, if you go down to third graders.\'[^456]

Bill Allison, Senior Editor at the Washington-based Center for Public
Integrity, also criticised the OGC for its faulty priorities. He
commented:

> Bill Allison. \'I\'ve gone through the files. A lot of them are
> looking at irregularities. I wouldn\'t even call them third-party
> candidates. Like, somebody files and manages to get on the ballot and
> never files for Congress, or a national office and never files the
> requisite FEC forms. They will spend a lot of time tracking somebody
> like that down and making them comply with the disclosure parts of the
> law. And when you have the flip side, which is fairly serious
> malfeasance on the part of a campaign and doing some of the things the
> FEC is supposed to go after, like co-ordinating the message between
> political party and independent groups like labor unions, the FEC
> doesn\'t spend as much resources on that.\'[^457]

One might conclude that the OGC does enforce the law against far more
\'widows and orphans\' than it does against significant repeat players.
However, whether as a result of carelessness, ignorance or inexperience,
first time candidates and minor players are the ones most likely to
commit technical, easily detectable violations. As the FEC is often
described as a responding agency not an initiating one,[^458] it is not
surprising that the agency enforces the law in these manifest
cases.[^459] As Trevor Potter commented, the FEC will go after anyone
for a clear-cut violation. Additionally, one might argue that as long as
OGC performance continues to be measured in a quantitative way, the
agency is likely to continue in the vigorous enforcement of these lower
level violations. Not only is it an effective way to close more cases
and improve active to inactive case ratios, it also improves timeliness.
The less experienced entities tend to be more co-operative and
deferential towards the OGC. As minor players cannot buy high price
legal talent, are often unaware of how the system functions or how
seriously the OGC views their violation, \'widows and orphans\' usually
wish to pay the fine and resolve the matter at the earliest opportunity.
However, one should note that some members of the regulated community
have attempted to exploit the maturing sensitivities of the agency
towards vulnerable actors. Larry Noble commented that:

> Larry Noble: \'There were a couple of bad cases early on in the
> agency\'s history, where it went after some widows and orphans. I
> don\'t think that's true anymore. The thresholds the agency has, I
> think, prevent that to a large degree and also the agency shows
> discretion on individual cases. I know where bad stories came to light
> about somebody and the agency let them go. Having said that, I was
> also there when a lot of people would come in with sob stories and
> you\'d look into them, or you tried to look into them, and they turned
> out not to be true. They come in and say, \'I\'m broke, I\'ve got no
> money. I owe hundreds of thousands of dollars.\' I\'d say let me see
> your tax returns and they wouldn\'t give them to you. It gets
> suspicious then. You send them an interrogatory and say, \"well let\'s
> see your assets\" and they won\'t answer. So I think that reputation
> comes from the early days of the agency, it\'s no longer true.\'[^460]

**[Enforcement Decision Making]{.underline}**

**[Introduction]{.underline}**

Two less frequently heard criticisms of the OGC is that they either
avoid enforcing the law against high-profile well-financed entities or
that, conversely, they unfairly target these powerful repeat players.
This is allegedly achieved through the biased exercise of prosecutorial
discretion. One might argue that those working in the OGC have a greater
degree of freedom than that possessed by staff in other regulatory
agencies. This could be explained by referring to the unique structure
of the Commission. The lack of a permanent Head or Chief Executive
ensures that no one individual exerts control over the agency. The even
numbered Commission, essentially a body of six equals, is then further
divided through the convention of appointing three Democrats and three
Republicans. Finally, in order to check any predilection for empire
building, Congress divided the bureaucratic power structure between two
Statutory Officers, the Staff Director and the General Counsel. Trevor
Potter described this as \'highly unusual,\' saying that \'most agencies
have one single person as Chairman in charge, or a single Staff
Director.\'[^461] Former staff director John Surina described the agency
as a \'creature that evidences balance within balance in every
direction.\'[^462] Although Mr. Surina said that this can lead to
timidity, A. J. Cowett argued that because of this structure, \'staff
tended to gain a greater degree of autonomy.\'[^463] However, evidence
to support a *laissez faire* attitude amongst OGC staff towards high
profile actors is weak. The PWC audit described the agency culture as
follows:

> \'A siege mentality best defines the organisational culture. FEC staff
> behaviours reflect defensiveness from enduring external criticism,
> battle fatigue from constant adversarial conflict and an instinctive
> mistrust that the filing community is opportunistically gaming the
> system. The organisation views the world from an \'us\' versus
> \'them\' perception.\'[^464]

The OGC staff exercise their mandate free from most of the more overtly
political sensibilities that impinge on Commissioners. As they have no
Party interest to serve and no Congressional patron to answer to, the
\'staff can be truly aggressive at times because they know they\'ll be
rolled back\' by the Commission.\'[^465] Therefore, if a *laissez faire*
enforcement attitude does exist towards high profile actors, it is a
criticism that ought to be directed at the Commission not the OGC. The
second criticism, which asserts that the more visible repeat players are
being discriminated against through deliberately skewed enforcement, is
certainly a sustainable one. By way of a disclaimer, one should note
that substantive action, either to authorise an investigation or file
suit, rests with the Commission, not the OGC and that the Commission may
direct the activation or deactivation of a case at anytime. Yet both
criticisms can only be discussed in an informed manner if one
understands the EPS, a management tool that attempts to bring rigour to
the exercise of OGC prosecutorial discretion.

**[OGC Enforcement Priority System (EPS-1)]{.underline}**

Prior to 1993, the OGC attempted to pursue all enforcement cases
irrespective of their importance or triviality. The lack of
differentiation and prioritisation meant that few cases received
adequate attention by staff and enforcement was particularly slow.[^466]
The General Counsel, frustrated with this situation, wrote a memorandum
to the Commission:

> \'We have become more and more dissatisfied with the length of time it
> is taking us to complete enforcement cases. As we have noted on many
> occasions, we have too many cases for too few people. While many of
> our cases need more than one staff member assigned, the staff
> resources are just not present.\'[^467]

On December 13 1993, the Commission announced that it had now developed
an objective method for ranking enforcement cases.[^468] Historically,
the Commission had been unwilling to prioritise cases as they wished to
avoid being placed in the unenviable position of explaining why they
were pursuing a particular case, which might involve an incumbent.[^469]
Therefore, this initiative was seen as a bold but positive step by many
in the OGC. Once a case is received by the OGC it is rated by the
Central Enforcement Docket according to a set of confidential criteria.
Although the specific point scoring and rating system remain
confidential, the broad issues that determine the ranking of cases are
as follows:

1.  who the respondents/players are.

2.  impact on the process.

3.  intrinsic seriousness of the violation.

4.  topicality of the activity.

5.  development of the law.

6.  subject matter.

7.  countervailing considerations.[^470]

Despite the confidentiality surrounding EPS criteria, some further
clarification can be made. Firstly, violations committed by high profile
repeat players are scored more highly than those committed by
inexperienced poorly funded candidates. The justification for this is
that enforcement against these players has a greater effect on the
regulated community than taking action against a candidate who failed to
win many votes and who is unlikely to run again.[^471] The second
criteria might involve making a judgement about how seriously a
violation affected the outcome of an election.[^472] For example, a high
scoring for \'impact on the process\' is likely if a candidate\'s
treasurer accepted a large illegal corporate contribution in the hope of
securing victory in a close race. Thirdly, \'intrinsic seriousness\' may
relate to the amount of money involved or whether the violation was
\'knowing and wilful\'.[^473] Although difficult to prove, \'knowing and
wilful\' violations in \'bright line\' areas of the law are taken very
seriously by the FEC. They may chose to prosecute as a civil matter, or
refer the case to the Department of Justice under the memorandum of
understanding 1978.[^474] The fourth, fifth and six variables are less
clear but may well relate to jurisprudential issues.[^475] For example,
the Commission may wish to resolve an outstanding matter through the
courts in order to clarify the law and re-establish regulatory
certainty. These factors could also relate to areas of the law that need
stronger enforcement efforts due to widespread violations.[^476]
Finally, an example of \'countervailing circumstances\' could involve
consideration of the age and timing of a violation. For example, if the
OGC found that the violation was committed in a previous election cycle,
the statute of limitations might preclude successful enforcement. In
1998 Commissioner Thomas testified before Congress on the matter of
investigating older violations of the FECA:

> \'Investigations of activity more remote in time usually require a
> greater commitment of resources, primarily because the evidence of
> such activity becomes more difficult to develop as it ages. The longer
> these cases remain unassigned because of inadequate resources, the
> more the utility of commencing an investigation declines, until,
> eventually, activation of a case would not be efficient use of
> Commission resources.\'[^477]

Matters scored highly enough to warrant Commission resources remain on
the CED until staff can be assigned to actively work them. As the EPS is
a ranking system, the Commission dismisses cases either because they
have grown stale through remaining unworked on the CED, or because they
are deemed to be a low priority and therefore do not warrant the use of
OGC resources.[^478] However not all lower priority cases are squeezed
out of the system, as an additional tier of less significant cases
operates to ensure that the full spectrum of violations is enforced.

The PWC audit concluded that the EPS was a sound management tool. It set
out that:

> \'The EPS is a reasonable triage approach and operates without evident
> partisan bias. EPS allows the FEC to exercise prosecutorial judgement
> while providing sufficient structure to differentiate among cases for
> Commissioner disposition.\'[^479]

However, the PWC audit was somewhat limited in its analysis. The audit,
whilst comprehensive, was more orientated towards an assessment of
management competency, practices and tools. Therefore, many of the
concerns and criticisms of the EPS by the regulated community were
ignored. The first criticism, which was alluded to in the introduction
to this section and something that generally emanates from the right,
seeks to challenge the way the OGC treats certain high profile actors.
The second criticism, which tends to come from those who favour more
expansive regulation, asserts that the EPS results in far too many
dismissals, something that undermines deterrence. Finally, many find the
way the Commission keeps the EPS ranking criteria confidential either
puzzling or ill conceived. By hiding which violations the FEC considers
serious and deserving of enforcement, is anathema to the way most
regulatory agencies operate.

In 1998 the House Committee on Government Reform and Oversight
investigated a number of campaign finance violations that led to
criticism of the OGC and Lawrence Noble in particular.[^480] The case
centred on large illegal foreign donations made to both Democrat and
Republican candidates by a well-known German businessman, Thomas Kramer.
The Democratic Senatorial Campaign Committee alleged that Howard
Glicken, a senior Democratic Party fundraiser, had solicited a \$20,000
contribution from Kramer in April 1993. After being fined \$323,000
Kramer submitted an affidavit to the Commission setting out that a
Democratic Party fundraiser had advised him to route his contribution
through another person as he was a foreign national. Kramer then
followed this advice and made an illegal conduit donation through his
Secretary, Terri Bradley. Evidence suggested that this Democratic
fundraiser was the regular White House visitor and former finance Chair
of Al Gore\'s 1988 presidential race, Howard Glicken. However, an OGC
memo relating to the decision not to pursue the matter was heavily
criticised by Republicans and the media. Chair of the House Committee on
Government Reform, Dan Burton (R-IND) addressed FEC Associate General
Counsel Lois Lerner, commenting:

> \'If you were on this side of the chair and you were reading this,
> \"Because of Mr. Glicken\'s high profile as a prominent Democratic
> fundraiser, including his potential fund-raising and support of Vice
> President Gore\'s expected Presidential campaign, it is unclear that
> this individual would agree to settle this matter short of
> litigation.\"[^481] and then you drop the case, you did not send a
> criminal referral to the Justice Department and yet you knew that that
> was a \$20,000 illegal campaign contribution. Illegal. It was against
> the law. And then you read this, along with the other actions that
> were not taken by your agency, it certainly appears as though there
> was a reason why you didn\'t send this to Justice.\'[^482]

The Republican view that was generally articulated through what Henry
Waxman (D-CA) referred to as \'innuendo,\' implied that the OGC did not
wish to antagonise the White House, as Glicken was expected to assist Al
Gore\'s 2000 presidential race.[^483] The 300 pages of Congressional
testimony contained numerous references to the failure of the OGC, all
of which implicitly ascribed preferential treatment being afforded to
Glicken. These criticisms were made more explicit in the 1449 page
report that was published by the committee on November 5 1998. It
commented:

> \'Furthermore, the FEC\'s statement linking Glicken to Vice President
> Gore as an apparent reason for not pursuing the matter appears to be a
> particularly ill-conceived message that the FEC does not prosecute
> cases when met with resolve and political connections.\'[^484]

However, if one considers the EPS criteria and the high score repeat
players attract, it was unlikely that the memorandum represented
anything to substantiate the claims of preferential treatment. When
asked about the case and the OGC report, Lawrence Noble commented:

> Larry Noble. \'The Glicken case, in retrospect we probably should have
> gone after him more seriously, but there was a preliminary report and
> things developed. I remember when that report crossed my desk and I
> remember hesitating at that stage and there\'s a point when you decide
> I\'m not gonna send it back, I\'m just gonna send it on. Little did I
> know! But it was one of those that I hesitated, I knew what he meant,
> the person who wrote it meant, and it wasn\'t the way it read. It was
> unfortunate. But, one, its hard and, two, the way the law is set up it
> isn\'t easy to get solicitors, and, three, sometimes its difficult to
> find out who they were. I really wish we\'d gone after him; we did
> later on. But there was nothing nefarious about that case. What we
> were facing, what that statement was meant to deal with, was that fact
> that this was a resource issue. What the staff were saying was that
> this guy is gonna fight us tooth and nail and its gonna be a long
> fight and we\'re running up against the statute of limitations and
> let\'s just cut it off. When the agency gets bogged down so much, the
> statute of limitations passes after a big investigation and it turns
> out to be a waste.\'[^485]

Other parts of the general counsel\'s memorandum contain references to
the time constraints alluded to by Lawrence Noble. The report stated:

> \'While this office would generally recommend a \'reason to believe\'
> finding against Mr Glicken and conduct an investigation into the two
> DSCC contributions, because of the discovery of complications and time
> constraints, this office does not now recommend proceeding against
> this identified individual, or the DSCC.\'[^486]

Donald McGahn, general counsel at the NRCC, commented on the Glicken
case and was asked:

> Author. \'Does the FEC shy away from powerful or high profile
> respondents, those likely to generate flak, those likely to defend
> their case aggressively?\'
>
> Donald McGahn. \'It goes back to what we talked about earlier. Pick on
> the guy who can\'t help himself, as opposed to the guy who...the big
> guy. But hearing you read that memo, seems to me a candid assessment
> by counsel, because one of the questions the Commission is going to
> ask is, \'can we conciliate this and not go to court.\' And that is
> saying no, co\'s the guy\'s not going to conciliate because he\'s
> going to run to the press and you know if you want him, you, the
> Commission\'s, gonna have to vote to go to court. We\'re gonna have to
> prove it in court. And if we can\'t, we can\'t. It doesn\'t mean that
> Larry Noble is backing down to some high priced Democrat.\'
>
> Author. \'So he\'s just being realistic.\'
>
> Donald McGahn. \'Yea, I think he\'s just being realistic. And some of
> the stuff is difficult to prove and if you want to go after the
> campaign entity, it's a bit easier because they are regulated. They
> file reports. They\'re not going to want to go and mess with the FEC
> too much because they are afraid they might get audited some day, or
> maybe they are on the radar screen. Nobody is really sure what
> happens, so you want to be co-operative. If you are not subject to FEC
> jurisdiction and you don\'t have to file reports, you can be a little
> more aggressive.\'[^487]

When asked about the case, Commissioner Thomas commented:

> Scott Thomas. \'The famous quote in the Glicken case, I always felt
> was twisted by the media. The point made by the General Counsel\'s
> office was that we\'re up against a statute of limitations and if we
> pursue this additional allegation, most likely this fellow, with a lot
> of money, will assert defences and will be able to drag out the
> process. Clearly, I think the Commission would have been delighted to
> pursue that violation or any other sexy violation if we thought we
> could win it, if it was serious enough.\'[^488]

However, for groups like the Fair Government Foundation (FGF), the
comments of Commissioner Thomas represent exactly what is wrong with the
OGC and the EPS.[^489] They argue that the OGC use EPS criteria as a
justification to pursue controversial cases involving legal uncertainty
and to unfairly target the high profile repeat players they disapprove
of. Bob Dahl, President of the FGF, commented:

> \'The worst effect of this case priority system is how it has turned
> enforcement priorities upside down. It gives extraordinary attention
> to a few juicy enforcement cases and deliberately neglects a vast
> number of \'routine\' cases. The basic bread and butter aspects of the
> law (which affect the broadest range of the regulated community and
> for which there is generally wide agreement on what the law says) are
> ignored in favour of exploring the frontiers of the law or only the
> big fish. FEC enforcement is not a general store, it is a
> boutique.\'[^490]

However, the Commission deliberately set out to target the \'big fish\'
Dahl referred to. Commissioner Thomas explained that when the EPS was
being developed, the FEC felt justified in prioritising enforcement
against repeat players. He commented:

> Scott Thomas. \'If you have got something that is a more significant
> case, that is a bigger amount of money, it involves someone who is
> involved in the process who will potentially continue to do
> this...that\'s the kind of case you want to pursue. Much more than
> maybe some peripheral player, minor or new party candidate, who will
> probably never be heard from again.\'[^491]

Lawrence Noble was asked:

> Author. \'When considering enforcement proceedings against
> individuals, the first criterion affecting that decision under the EPS
> is who the respondents/players are. What is the significance of this
> particular criteria for the way the FEC exercises prosecutorial
> discretion?\'
>
> Larry Noble. \'It goes back to the widows and orphans. Obviously you
> want to concentrate on people who are in it constantly, the big
> players, the political Parties, the professionals, the ones who you
> get a bigger bang for the buck in affecting how things get done. Going
> after the one-time solicitor who has never been involved in politics
> before and will never be involved in politics again may not be worth
> it. And we live in a world where we have limited resources. So one of
> the factors you consider is who are the players. Are these the
> political Parties? Are these the major actors? People who are
> constantly involved in the process. If so, that generally weighs on
> the side of, \"yea, you do want to go after them.\"[^492]

Lawrence Noble explained that although the EPS builds in a proclivity
for the OGC to recommend enforcement action against high profile
respondents, the Commission may ultimately decide not go after somebody
because they are scared of them. However, one might repeat the
disclaimer that this discussion focuses on the bureaucracy, not the
Commissioners. It is clear that the EPS helps to ensure that violations
committed by high profile actors do attract the attention of OGC,
whatever the eventual outcome. Therefore, at a staff level, it is highly
unlikely that high profile actors would receive any preferential
treatment, quite the opposite in fact. Secondary data and elite
interviews support the assertion that high profile actors are actively
targeted by OGC. The contentious issue is not empirical but normative.
The OGC view this targeting as something desirable and necessary, yet
others view it as unfair and discriminatory.

Perhaps the most serious criticism of the EPS is that it undermines
deterrence by dismissing too many cases. If large numbers of cases are
dismissed without being investigated or put before the Commission,
respondents are not only denied due process but also the consequences of
breaking the law become marginal. Low rated and stale dismissals are set
out in the table below.

[Table 2.9.2: Data showing the numbers of low rated and stale
dismissals.]{.underline}

  ----------- ------- ------- ------- ------- ------- ------- --------- -------
              CY95    CY96    CY97    CY98    CY99    CY00    CY01      TOTAL
                                                              31.8.01   

  LOW-RATED   66      34      128     49      45      42      16        380

  STALE CASES 54      52      79      48      14      6       2         255

  TOTAL       120     86      207     97      59      48      18        635
  ----------- ------- ------- ------- ------- ------- ------- --------- -------

FEC memorandum held by the author, 17.9.01.

In testimony before the House Administration Committee, Kevin Bacon, a
partner in PWC, commented that \'no Commissioner, staff member, or
independent observer would be satisfied with the number of cases dropped
for staleness or a low EPS rating.\'[^493] PWC sampled the OGC
enforcement caseload from January 1 1994 to September 30 1998. It found
that of the total 1,179 cases, 661 were dismissed under the EPS. One
might note that in addition to these EPS dismissals, a large number of
other cases were dismissed for unspecified reasons.

[Table 2.9.3: Summary of case disposition, January 1 1994 - September 30
1998.]{.underline}

  ----------------------- ----------------------- -----------------------
  2%                      SUIT AUTHORISED         29 CASES

  22%                     CONCILIATION            262 CASES

  1%                      PROBABLE CAUSE\*        13 CASES

  12%                     REASON TO BELIEVE\*     140 CASES

  3%                      NO REASON TO BELIEVE    36 CASES

  33%                     LOW PRIORITY DISMISSAL  388 CASES

  23%                     STALENESS DISMISSAL     273 CASES

  3%                      OTHER DISMISSAL         37 CASES
  ----------------------- ----------------------- -----------------------

\* With no further action.

Source: PWC (1999) Exhibit ES-1.

Most interviewees expressed serious concern about the number of cases
dismissed by the FEC. Some observers particularly critical of the EPS
have referred to these dismissals as \'case dumping.\' Larry Noble was
asked about the efficacy of deterrence in light of the PWC figures, he
commented:

> Larry Noble: \'I think it affects it a lot. Obviously in any law
> enforcement, the less chance you think there is about getting caught,
> the less deterrence there is. You know I\'m gonna drive home late at
> night and there is not going to be any cops on the road, whether I\'m
> gonna speed or not, I think it does affect it. There are cases that
> are low rated because they\'re just not worth it, not worth pursuing
> and I say that, even if we were given a blank cheque on enforcement, a
> lot of complaints that came in, you would dismiss, not worth going
> after. Minor things, petty things. You always have a certain amount of
> discretion in law enforcement that you are not going to go after
> everything. But the disturbing ones, the ones that you should have
> gone after but eventually you just dismiss them because they got too
> old, you just didn\'t have time to go after them. That was for me the
> real sign: how many cases we were dismissing because they were stale.
> They were the ones you held onto because you should go after them but
> after a while they got too old, more than the low rated ones. Even the
> low rated ones, with enough resources, your threshold for dismissing
> low rated cases would have changed. Meaning that there were cases that
> they were dismissing as just not being worth it, but would have been
> worth it if we had enough resources. The big-ticket items were the
> stale ones, were getting dismissed, you\'d held onto, thinking you\'d
> like to get to but got dismissed. And it does affect deterrence.
> There\'s certain people you can tell that there is no enforcement
> going on and they\'re gonna follow the law. But there are other people
> who at least round the edges push the envelope. Are gonna assess the
> field and think what are the chances of getting caught. If the odds of
> going after you are small and if they do go after you it will be way
> after the election and you get a small penalty, that's ok, it becomes
> the cost of doing business. Most people want to comply with the law. I
> then think that what starts happening in politics as in anything else,
> as the cost of complying goes up, they start thinking about
> non-compliance, especially around the edges. There are candidates who
> will accept illegal corporate contributions fully knowing that they
> are accepting illegal corporate or union contributions. They are
> clearly the minority and those are really the bad actors. The more
> dangerous part of it is pushing the envelope. Meaning there is a grey
> area and saying well, I\'m gonna play in the grey area and maybe just
> for sport, occasionally I\'ll go over the line and not worry about it
> because the cost of enforcement is low and the benefit of playing in
> the grey area is high. It increases my chances tremendously of
> winning.\'[^494]

Donald McGahn was also asked to comment on the PWC EPS dismissal
statistics:

> Donald McGahn. \'Well, it sends a very strong message, that you be one
> of the 6 out of 10 that get away scot-free and not have to do
> anything. I think it sends an awful message. It\'s something that
> frustrates me here, as someone who represents the regulated community,
> because what I see is the 4 out of 10, or whatever the statistic is,
> who are in trouble, who tend to be the first time candidates who
> couldn\'t pay a lawyer or an accountant at the threshold of their
> campaign. They lost and have no money to pay a fancy guy like me and
> are at the mercy of the five lawyers\' with one guy falling asleep at
> the FEC. And how many times have you heard the FEC referred to as the
> \'toothless tiger\' because it can\'t enforce the law? That is the
> test that really bolsters that. But the staleness issue is something I
> never understood, because I know they are busy, some of these cases
> are factually complex, but it is not really fair to the regulated
> community to just leave them hanging, because you want a resolution.
> Now, were you guilty, or weren\'t you? Did you commit a violation, or
> didn\'t you. Who knows? But the person who took time to file the
> complaint thought there was something wrong. Under oath, which is what
> is has to be. Well, we just didn\'t get to it. So if you have a
> choice, breaking the law, you can do it right, or you can do it sort a
> not so right way for what ever reason, there is a pretty good chance
> you can get away with the not so right way.\'[^495]

When asked the same question, former Commissioner and GOP lawyer Trevor
Potter commented:

> Trevor Potter. \'Well, first the figures are dismal, secondly there is
> a legal question as to whether the FEC has statutory authority to
> dismiss any cases. The statute is very clear, the statute says that
> the Commission shall vote. There isn\'t a procedure in the statute
> that allows for the dismissal for staleness. The statute says that the
> Commission shall review the complaint. If the Commission finds by a
> vote of four, it shall proceed. These are cases where the Commission
> are not reviewing the complaint, co\'s the Commission is deciding that
> they\'ve got too many cases. The real question you want to look at is,
> how many higher rated cases are being dismissed as opposed to pursued?
> The ones that are decided important and then dismissed because they
> are stale are a real danger sign.\'[^496]

However, Jan Baran offered a more positive view about the efficacy of
the EPS. He viewed the PWC dismissal figures as rational administration.
When asked how these statistics might affect the credibility of
deterrence he replied:

> Jan Baran. \'Well I don\'t think it does, although I think it can be
> used as ammunition by the public integrity constituents. But the vast
> number of complaints that go through a law enforcement agency are
> dismissed. Civil complaints that are lodged with a prosecutor, even
> criminally, after they are reviewed, when they assess the resources
> they have and the priorities they have, prosecutors will simply not
> pursue, as with the majority of complaints filed with that agency. A
> combination of two things: most importantly, either someone doesn\'t
> seem to have done something wrong, or did something so minor that it
> is not worth spending time on. You can\'t arrest and prosecute every
> jaywalker.\'
>
> Author. \'Can I come back to you on that? When I spoke to Larry Noble
> he wanted to differentiate between a low EPS rating and staleness. I
> think what he was saying was that it is fair enough if you are
> dismissing cases for a low EPS rating, but if you are dismissing cases
> for staleness, the reason why they are stale is that you held onto
> them because they are important and you need to try and enforce the
> law. Therefore, if you are getting rid of a large number of cases
> because of staleness then that is serious.\'
>
> Jan Baran. \'But they haven\'t investigated it, so they don\'t know if
> it is a serious case do they?\'[^497]

Jan Baran\'s comments are indicative of a particularly hostile attitude
towards laws that are seen to infringe First Amendment protections
guaranteed under the U.S. Constitution. Therefore, the introduction of
the EPS, high rates of dismissals and the consequent effects this might
have on any notion of deterrence are viewed as a desirable thing. For
Jan Baran, the agency is merely being rational, forward thinking and
adopting practices which have long since been the norm in other
regulatory agencies.

However, if one examines the figures that set out stale and low rated
dismissals, the FEC has been able to reduce the number of stale
dismissals significantly. Therefore, one might argue that since the
completion of the PWC audit in 1999, the EPS appears to be functioning
more as it was intended, primarily filtering out the less significant
cases. Commissioner David Mason was asked about the 59% dismissal rate
contained in the PWC audit:

> David Mason. \'Well, first of all one of the criticisms levelled at
> the Commission before I came was the dismissal rate, cases dismissed,
> and I took it as part of my charge to lower that rate, to lower the
> number quite substantially. So I would start off by saying that the
> problem is quite a lot smaller than that figure and the Commission has
> been addressing quite substantially the number of stale dismissals
> over the past two or three years. It\'s pretty small, down to single
> digits per year. So I think it was a valid criticism before. In
> defence of the people here before, the Commission had asked
> substantially for more enforcement resources in the period running,
> particularly 96, 97, 98, and hadn\'t gotten it from Congress.\'[^498]

A final criticism of the EPS is the secrecy that surrounds it.
Republican and Democrat election lawyers complain that there is a lack
of \'bright line\' regulation. They argue that the EPS should be used to
send a clear message to the regulated community about what the FEC
considers serious and therefore likely to attract enforcement action.
Although the FEC maintains this secrecy in order to stop actors
rationalising their behaviour, Alex Vogel, general counsel at the NRSC,
said that this occurs. If the law suggests that something is illegal but
this area is not being enforced, clients will be advised accordingly.
Therefore, the lack of clarity produces the behaviour the FEC wish to
discourage.

> Author. \'In certain regulatory agencies they communicate to the
> regulated community, \'this is what we think is important, do this and
> we are going to go after you.\' The FEC seems to operate in exactly
> the opposite kind of manner. Because we have the EPS and we have five
> or six criteria, not exactly a mystery what they are, although it is a
> bit of a mystery how these things are weighted and the various tiers
> that occur. So what they want to do is make it a secret, so the
> regulated community isn\'t getting any kind of direction. Is this
> necessarily a good thing?\'
>
> Alex Vogel. \'You\'re absolutely right. No. Prior to being in this
> kind of work, I\'ve advised people in other regulated communities, the
> communications industry, the insurance industry, and it's the exact
> opposite. The goal of most regulators is that we have this group of
> regulations and we want the community to comply. Voluntary compliance
> based on clear standards is a much more efficient regulatory process
> than hiding the ball, then sporadically jumping at people not
> knowing.\'
>
> Author. \'Isn\'t this to stop the regulated community from
> rationalising their behaviour in terms of well, this I know they
> won\'t go after me for, so don\'t comply with the law?\'
>
> Alex Vogel. \'It\'s incredibly inefficient, if that's their thought
> process. What it has led to on the ground, in the real world, how we
> advise people, well...the best example is issue ads. Issue ads were
> not an issue so to speak before 96, then after 96 Party committees
> spend millions of dollars and there was an issue about whether Clinton
> actually wrote the scripts himself and whether he co-ordinated those
> issue ads. There were all these enforcement cases that went nowhere.
> The Presidential audits from 96, they finished work on the Dole audit
> a month ago. A full cycle later, nothing came out of that. We get to
> 2000, we all sat down for the 2000 election campaign, the NRC,
> everyone, all right where are we on issue ads? It was clear that tons
> of people didn\'t like it and tried to raise all kinds of ruckus and
> get millions of dollars pumped out of the audit and other stuff. And
> enforcement, well, nothing had been decided, what had been decided was
> dismissed. The public views of the Commissioners were not favourable,
> Scott....But the perfect example, what happens in 2000 is that it has
> never been enforced effectively. The regulations are totally grey in
> that area, so they\'re not likely to go after you on this. But we\'re
> doing exactly what they don\'t want us to do, co\'s how else are we
> supposed to operate?\'[^499]

Bob Bauer described the EPS as a \'mystery to people in the regulated
community.\'[^500] He criticised the secrecy that surrounded enforcement
priorities and argued that the FEC should send a clearer message to the
regulated community.

> Bob Bauer. \'From the regulated community\'s point of view it is still
> not clear. The Chairman of the SEC will come in and say we are now
> emphasising X, we are very concerned with unauthorised trading on the
> NAZDAK. So you know, if you are a brokerage firm, what is going to be
> looked at. Even before the EPS came into affect, the Commission tried
> to hide what its enforcement priorities were. As you know, political
> committees can be audited for cause and the audit criteria, the way
> points were assigned to warrant an audit, had never been disclosed on
> the grounds that if committees knew what they were supposed to do,
> they might just do it. It doesn\'t make a whole lot of sense.\'[^501]

One might argue that the regulated community has a legitimate grievance
concerning the lack of bright line regulation. But that lack of clarity
and certainty is often the result of the Commission\'s inability to
marshal the four votes required to enforce the law and not a particular
fault of the EPS. Partisan and ideological disagreement, coupled with
legal uncertainty, can lead to \'reading of the Commission\' as
described by Alex Vogel. The regulated community makes educated guesses
concerning what is likely to be enforced. Alex Vogel commented on this
lack of bright line regulation:

> Alex Vogel. \'Sometimes people say to me, people who decide to run for
> office and they say what do I really have to watch out for, aside from
> the mechanical file this, disclose that. \'What kind of things will
> really get me in hot water?\' Well, taking money from a foreign
> national will really get you in hot water. Because it\'s one of the
> things that is now reasonably clear and there\'s no wiggle room. The
> process of getting to that was tortured! And I\'ve got memos from my
> files from previous people who sat in this office five years ago and
> said, \'well, ya can\'t do it for a Federal account, but I don\'t see
> why ya couldn\'t do it for soft money, or maybe the building fund.\'
> Even that, which is now incredibly clear, which is a really bright
> line, was such a tortured process.\'
>
> \'We would be thrilled to have bright line, black letter, if you do X,
> Y will happen, on any number of lower level operational and mundane
> things. Foreign nationals, \$1,000 limits, disclosure, filing time
> lines, electronic filing. Screw up this and you\'re gonna get hit
> with. I would love to be able to say to my clients, \'if you hold the
> cheque for more than ten days and don\'t deposit it, it\'s a \$1,000
> cheque, you\'ll get a \$200 fine.\' I would love that. With the
> exception of the administrative fine stuff for filing, I can\'t really
> effectively tell them what will happen to them if they\'ve made a
> mistake.\'[^502]

The lack of bright line regulation is endemic in an agency headed by six
equals, yet the EPS now functions quite well. It helps in the rational
allocation of OGC resources given the CED caseload, enforces a full
range of serious and less serious violations and disposes of low rated
and stale cases. Commissioner Mason was asked:

> Author. \'The EPS has been criticised for its role in allocating staff
> and other resources in enforcement matters at a particular juncture
> and not as a system to send a particular message to the regulated
> community. How would you respond to this?\'
>
> David Mason. \'I don\'t think it was intended to send a message to the
> regulated community. It was intended, as I understood it and how I see
> it works, triage, process exclusive to sort out substantial and
> insubstantial matters and then, among the substantial matters, to set
> out some degree of importance. I think that is what it\'s for. I
> approached it with some degree of sceptically but I think it\'s useful
> as a tool for exactly that reason. For example, the tier 1 and tier 2
> distinctions are distinctly there to maintain some level of
> enforcement against the important, but not earth-shattering,
> enforcement complaints. In that sense, probably there is some message
> received ultimately by the regulated community. But they have a harder
> time predicting which complaint will be enforced against.\'
>
> Author. \'So maybe not giving a clear message is a good thing?\'
>
> David Mason. \'Yes, yes.\'
>
> Author. Because then they don\'t start to rationalise the process and,
> as Larry says, you start to think about breaking the law as part of
> the cost of doing business.\'
>
> David Mason. \'So by having that, leaving them with some uncertainty,
> in a system where you don\'t have the resources to enforce every
> substantial complaint.\'
>
> Author. \'It becomes like roulette.\'
>
> David Mason. \'Yes and leaving them with that and as long as there is
> a reasonably high degree of possibility that their case will come up
> and their case will be selected, in this system, that can work as a
> deterrent.\'[^503]

**[Conclusion]{.underline}**

One might conclude this chapter by saying that there appears to be a
universal consensus amongst election lawyers, Commissioners and
Congressmen, that enforcement timeliness is poor. Whilst the Commission
has been able to actively work 40% of its enforcement caseload, one
might argue that this particular goal was a modest one in light of the
widespread criticism directed at timeliness. However, the plurality of
reasons for this enduring problem is worth reiterating. The growth in
campaign spending from \$386 million in 1978, to \$2.3 billion in 1998
has not only meant an increased workload for the FEC, but Congress has
been reluctant to allow the Commission to recruit sufficient staff to
keep pace with this change. Additionally, the growth in case complexity
and the number of respondents per case, coupled with the multi-stage
enforcement process and the increasing willingness of the regulated
community to \'push the envelope,\' all create more work for the OGC and
hinder timely enforcement.

Larry Noble was correct in his observation that there has been a
philosophical change in the enforcement ethos which has sought to
improve timeliness through the introduction of new low impact
programmes. Both the administrative fines programme and the ADR pilot
are examples of these. These low impact programmes avoid controversy,
help to improve performance statistics, and in the case of the fines
programme, help to promote bright line regulation. Although the FEC
claims that the fines programme has significantly increased disclosure
timeliness are difficult to substantiate because of the preparation for
and then the introduction of mandatory electronic filing, most observers
view the programme as a success. However, a number of observers both
inside and outside the Commission were sceptical about the programme
freeing up the resources alluded to in the Federal Register.
Additionally, although the problem of uncollected administrative fines
is not the responsibility of the FEC, if large numbers of cases remain
as \'uncollectables,\' the programmes deterrent effect will decline over
time. The positive response demonstrated by election lawyers and other
members of the regulated community for the administrative fines
programme might be contrasted with that for the ADR pilot. Many
interviewees were unenthusiastic, unaware or critical of the programme.
Some saw it as a cynical ploy to \'get the numbers up,\' others just saw
it as unsuitable for this particular regulatory environment as there was
no \'percentage in it.\'[^504]

In assessing the fairness of enforcement, the partisan hypothesis had
little or nothing to commend it. The agency structure prevents any one
Party form co-opting the agency for partisan purposes. Poorly funded
inexperienced actors have been subjected to more enforcement action than
their status might warrant. During the Commission\'s infancy, this
scenario resulted from institutional insensitivity and led to the
much-talked about cases referred to by Mary Meehan, Jan Baran and Scott
Thomas. As the agency has matured, it has become more sensitive, yet
these actors still find themselves the subject of enforcement because
they commit most of the easily detectable violations, either through
ignorance of the law or inexperience. Another reason why widows and
orphans might be subjected to enforcement action in what appears to be a
relatively minor violation is that a legal principle is involved.
Finally, the cynical view that \'small fry\' are easily intimidated,
usually wish to settle as soon as possible and help to get the \'numbers
up\' should not be dismissed. The stable OGC violation profile is not
comprised of the big \'sexy\' cases referred to by Commissioner Thomas,
but far more routine, often *malum prohibitum* violations committed by
those without the resources to employ election lawyers and accountants.
These cases make up the majority of statistics that represent
enforcement performance. Others have argued that the FEC positively shy
away from enforcing the law against high profile respondents. The
memorandum relating to the Glicken case was used to assert this
criticism. However, the EPS positively weight cases that involve high
profile actors as these players are in a position to violate the law in
the future. Some, like GOP lawyer Jan Baran and Bob Dahl of the FGF,
argue that this unfairly discriminates against high profile players. Yet
it is appropriate to regulate wealthy high profile players more strictly
than the transitory actor unlikely to attract more than a few votes.
Finally, in the past, the EPS has been legitimately criticised for
dismissing too many cases and thereby undermining deterrence. A large
number of low priority cases were dismissed in 1997, which resulted from
the 1996 scandals, and far too many stale cases have been dismissed in
the past. However, since 1999 the dismissal rate of stale case has been
significantly lowered.

## CHAPTER 3 

**[FEC Commissioners]{.underline}**

OGC staff and the General Counsel in particular exercise considerable
bureaucratic authority, yet the *de facto* locus of power resides with
the Commissioners. In this chapter the way in which those at the apex of
the structure affect the nature and effectiveness of enforcement will be
examined. Firstly, the structure and record of FEC leadership will be
reviewed. One might justify this review because leadership, or the lack
of it, can have a significant impact on agency performance. Secondly,
the role and function of *ex officios* on the Commission will be
discussed. As these Congressional representatives were entitled to
attend Commission meetings where MURs might be discussed and voted on,
their role has attracted criticism from a number of quarters. Thirdly,
the Commissioner appointment process will be discussed. The
politicisation of appointments and the Congressional dominance over the
system has arguably produced an agency lacking in independence.
Fourthly, the common criticism that the agency suffers from partisan
immobilism will be examined. Whilst this criticism may be accurate at
times, partisanship is only one factor that contributes to the outcome
of enforcement decisions. Other factors that feed into the deliberative
process are: consensus amongst Commissioners, legal interpretation,
evidentiary and regulatory philosophy. Finally, as Commissioners are
responsible for authorising civil actions where conciliation has failed,
some observations will be made about the Commission's court
record.[^505]

**[Commission Leadership]{.underline}**

The FECA (1974) established an eight-member body, six Commissioners with
full voting rights and two non-voting *ex-officios*. Congress
deliberately created a weak leadership structure at the Commission. The
Chairman and Vice-Chairman are elected annually by their Commissioner
colleagues and neither position is vested with any additional powers.
Unlike the FEC, the Securities and Exchange Commission (SEC), the
Federal Communications Commission (FCC) and the Federal Trade Commission
(FTC) each have a chairperson who acts as a clearly identified leader
and chief executive.[^506] Due to the political sensitivity of its
mandate, the Commission was designed to function as a panel of six
equals. However, the Chairman moderates debate in Commission meetings,
signs documents and performs a number of additional administrative
duties. Additionally the Vice-Chairman will chair the agency's finance
committee and will present and justify the budget request to Congress.
Although the Chairman may exercise discretion in setting institutional
goals, these may change as a new Chairman affiliated to the opposing
Party assumes office.[^507] As the General Counsel and Staff Director
manage the permanent bureaucracy, power is divided at staff level and
the agency experiences \'multiple direction\' from the top.[^508] The
collegiate leadership structure and the transient nature of the
Chairmanship and Vice-Chairmanship were reflected in their cursory
description in the FECA. The law stated:

> \'The Commission shall elect a chairman and a vice-chairman from among
> its members for a term of one year. A member may serve as chairman
> only once during any term of office to which such member is appointed.
> The chairman and vice-chairman shall not be affiliated with the same
> political party.\'[^509]

The PWC audit (1999) criticised the FEC leadership structure. It
concluded:

> \'The FECA appears to have deliberately created diffused leadership
> roles amongst the Commissioners and statutory officers, making it
> difficult for the organization to speak with one voice or provide
> clear direction to the FEC.\'[^510]
>
> \'Commissioners frequently act independently, instead of as a body in
> managing the agency. Many times, no action is taken on a subject
> because no four members can reach agreement on an appropriate course
> of action. In interviews, many staff expressed a feeling that all
> their hard work and effort had gone for naught and that their work is
> not worth the effort when Commissioners fail to reach closure.\'[^511]

Commissioner Mason also alluded to the problem of forging a consensus
amongst Commissioners over policy issues.

> Commissioner Mason: 'I have certainly participated in, made efforts to
> try to forge more consensus like that among the Commission and it is a
> very difficult, frustrating process. Because you are dealing with six
> people who bring different things to the table, different views, and
> ultimately there is no-one to settle issues and erm, given the way
> Commissioners are appointed, and the way they view their jobs, it is
> not common to get a very strong four or five member consensus to any
> definite policy. There is a collegial attitude, of deference, where if
> one Commissioner feels strongly about something, the other
> Commissioners are reluctant to say, well I'm sorry you're just not
> gonna get what you want.\'[^512]

Republican election lawyer and former Commissioner, Trevor Potter also
referred to the lack of leadership at the Commission:

> Trevor Potter: \'One of the problems with the FEC is that there is
> nobody at the top. No one person.\'
>
> Author: \'So it\'s kind of a problem of leadership.\'
>
> Trevor Potter: \'I think there is a vacuum of leadership. You have a
> Commission that has a rotating Chairman, it\'s certainly governing by
> committee. It\'s not designed to have any one person in charge. As you
> know, all other staff, General Counsel, Staff Director, can be hired
> and fired by a majority of the Commission. There has been a deliberate
> attempt at diffusion at Staff level, then the removal of a strong
> executive, charitably out of concern that the Commission would be too
> aggressive. Less charitably, so that it wouldn\'t be aggressive at
> all. But no, there isn\'t a centralised leadership.\'[^513]

However, Bill Allison, senior editor at the Center for Public Integrity,
argued that the FEC was not the only agency that experiences regular
changes in leadership. He suggested that the revolving Chairmanship at
the FEC was not an adequate reason for lacklustre leadership. He also
opined that other agency Chairs had been much more willing to go to
Congress and ask for legislative change and assistance. When
interviewed, he commented:

> Bill Allison: \'I haven't seen the Commissioners begging Capitol Hill
> to change the law, so they can really crack down on people and it
> would seem that the FEC would have a certain amount of weight. The FBI
> Director asking for this, that and the other thing. You see the head
> of Central Intelligence going in closed-door sessions, but every
> Federal agency\...the Heads of it go\'.
>
> Author: \'But these ones have a permanent Head and the FEC doesn't. Is
> that one of the major problems? This rotating Chairmanship and
> Vice-Chairmanship? You can't have a strategic vision.\'
>
> Bill Allison: \'Think how many changes there have been at the FAA
> probably not the best example because of the air traffic control
> system has been a mess and the IRS computer stuff has been a mess. But
> overall, every agency has to deal with this to some extent and with
> the FEC it seems that, except when they have the opportunity when it
> was kind of their\.....the soft money co-ordination of the '96
> campaign was essentially an FEC issue, much more than a Justice issue,
> or something that Congress should be looking at and that was a time
> when essentially all they did was to ask for more money. They didn't
> ask for revising the statute, they didn't go to Congress and say
> listen, we need more money if we are going to investigate it. The
> approach was entirely different, that we have this huge backlog of
> cases and we can't get to this one. Well, what\'s more important than
> a Presidential election? What\'s more important than that
> investigation?\'[^514]

The Commission has been poorly led. Yet this enduring characteristic was
more the product of Congressional self-interest and less the product of
individual failure at the FEC.[^515] Congress structured the agency in a
way that would discourage strategic planning.[^516] The one-year
Chairmanship and lack of powers associated with the Office was a
deliberate hobbling strategy. The separation of power at staff level was
also designed to encourage rivalry between the agency's two Statutory
Officers, Staff Director and General Counsel. Additionally, Congress has
been more willing to accommodate agency requests for legislative change
from those bodies whose mandate does not directly affect their chances
of reelection. For example, the agency makes annual recommendations for
legislative change, which are submitted to Congress and published in its
*Annual* *Report.* Yet those recommendations designed to improve
enforcement have often been ignored by Congress.[^517] Furthermore, Bill
Allison\'s statement that the agency failed to ask Congress for
additional funding to investigate the allegations surrounding the 1996
elections was inaccurate. Republican appointee and FEC Vice-Chair Joan
D. Aikens asked Congress for supplemental funding of \$1.7m (1997) and
\$4.9m (1998) to enable the agency to investigate the alleged abuses.
Commissioner Aikens testified:

> \'We propose to augment the floor budget with a special multi-year and
> multi-disciplined project to mount an appropriate investigative
> response to the extraordinary problems associated with the 1996
> elections. Among them are several allegations of violations of
> unparalleled scale. These cases entail complex factual matters,
> contentious legal and constitutional issues, and involve millions of
> dollars and thousands of financial transactions requiring detailed
> review.\'[^518]

Bob Livingston (R-LA) Chairman of the House Appropriations committee
responded to Aikens request for what she described as \'discrete units\'
by commenting, \'I dare say, if soft money has gone up by 171 percent,
if the FEC stationed a person in the Lincoln Bedroom, it might take care
of that.\'[^519] Despite making similar pleas before the Senate
Committee on Rules and Administration, both supplemental budget requests
were denied.[^520]

**[*Ex-officio* Commissioners]{.underline}**

The Secretary of the Senate and Clerk of the House were designated as
the *ex-officio* members of the Commission. However, Congressional
officers rarely performed this role in person. Each officer nominated a
special deputy who was entitled to attend the closed executive sessions
of the Commission. When sitting in executive session, Commissioners
might deliberate enforcement matters and discuss the formulation of new
rules and advisory opinions. Some politicians saw the special deputies
as performing a useful function, acting as liaison officers between the
two bodies, facilitating the free flow of information and articulating
Congressional views.[^521] Yet others have described them as
\'Congressional spies.\'[^522] Jan Baran said that, \'they are spies,
they sit there like brooding taskmasters.\'[^523] The reform community
has also been particularly critical of the special deputies\' place on
the Commission. They see their close proximity to the decision-making
process as ethically problematic. The criticism was that the special
deputies might use their position to influence Commission votes on
enforcement cases and litigation.[^524] When asked if *ex-officios*
voted on enforcement matters, the Commissioner commented:

> Commissioner Mason: \'Not to my knowledge but I wouldn\'t be surprised
> if there hadn\'t been some system to, for them to register, at least,
> for instance, we have these tally votes through which most of the
> business of the Commission is conducted. If there is not an objection
> on a tally vote, then matters are passed, without coming to a formal
> Commission meeting. It wouldn\'t surprise me if the Commission didn\'t
> have a system where *ex-officio* members could object and force the
> item onto the agenda at which point they couldn\'t vote. They were
> clearly prohibited from exercising that authority but they might have
> had that kind of power.\'
>
> Author: \'Some method of articulating their objections or concerns?\'
>
> Commissioner Mason: \'Yes, yes, that was the express reason for them
> being here. It would be very odd if they weren\'t able to do
> that.\'[^525]

Bob Livingston (R-LA) criticised the presence of *ex officios* in the
fiscal year 1994 authorisation hearings held before the House
Subcommittee on Elections. Firstly, Livingston asked a number of
questions designed to establish who paid the salaries of the special
deputies and their secretaries. As Livingston has long held the belief
that the FEC was inefficient and wasteful, this particular probe was
designed to confirm that view. However, this failed as the special
deputies were on the Congressional payroll and the FEC only funded the
salary of one secretary for each of the Congressional representatives.
Secondly, although the traditional orthodoxy has been that the special
deputies represent Congressional interests as a whole, Livingston\'s
next criticism alleged partisan bias. In dialogue with Commissioner
McDonald, Livingston alluded to the fact that the Clerk of the House and
Secretary of the Senate were chosen by the majority Party leadership in
each chamber. He then noted how the Clerk and Secretary then appointed
the special deputies respectively. Livingston\'s charge was that as the
Democratic Party controlled the House and Senate the special deputies
represented their \'vantage point\' and that the minority Party had no
such representation on the Commission. Finally, whilst Bob Livingston
initially feigned ignorance about who acted as the Secretary of the
Senate\'s special deputy, he later remarked that this individual, former
U.S. Senator Wyche Fowler (D-GA), was the subject of an FEC enforcement
action surrounding his 1993 re-election defeat in Georgia. However,
although the potential conflict of interest was clear, the Congressman
was assured that Fowler would recuse himself of any deliberations
involving his own case. Whilst Livingston was able to successfully
exaggerate the significance of *ex officios* for partisan purposes and
in the furtherance of a particular philosophical attitude towards
regulating political money, much of his approach was designed to
undermine the credibility of the FEC.[^526]

One might argue that although *ex-officios* were proscribed from voting,
they exercised some influence on the Commission. Additionally,
Commissioners seeking re-appointment were likely to be mindful of
offending their Congressional patrons. Larry Noble noted how some
Commissioners would pull back from enforcement as they lobbied to secure
re-nomination to the Commission or obtain a job in the private
sector.[^527] Therefore, the views of *ex-officios* might have assumed a
disproportionate influence over those Commissioners nearing the end of
their six-year term.

> Larry Noble: \'There\'s actually a real case of where a Commissioner
> was punished very directly in the reappointment process because of a
> vote she had taken. There were two terms open. Her six year
> reappointment term and because another Commissioner had left, there
> was a two-year term also. She was given the two-year term because of
> some of her votes.\'[^528]

However, the debate was brought to a close when the D.C. court of
appeals in *FEC v NRA Political Victory Fund* (1993) ruled that the
presence of the two *ex-officios* had broken the separation of
powers.[^529] After the Commission lost its Supreme Court appeal in *FEC
v NRA* *Political Victory Fund* (1994) for \'lack of standing,\' the
Commission was reconstituted as a six-member body.[^530]

**[Commissioner Confirmation Process]{.underline}**

Members were originally appointed on a staggered basis so that one
Commissioner affiliated with each of the main Parties would become
eligible for reappointment every two years.[^531] As FEC appointments
have not been viewed as a priority in the Senate and because some
appointments can be affected by partisan or ideological disagreement,
the confirmation process can often be delayed.[^532] However, appointees
affiliated to both Parties are effectively bound in a symbiotic
relationship grounded on the premise of mutual success or mutual
failure. For example, if one nominee is opposed during their Senate
hearing, it is unlikely that the other appointment will be confirmed
either.[^533] Bill Frenzel (R-MN) explained:

> \'The history of confirmation shows that when one appointee is having
> trouble getting through the Senate sieve, the one in difficulty stands
> with the one who is not and neither moves through the process; they
> are always moved in tandem because of the delicate political nature of
> the system and therefore, if one doesn\'t make it, the other does not
> either.\'[^534]

Commissioner Scott Thomas was asked:

> Author: \'How might one understand the appointment process? After
> reading many confirmation hearings, it seems somewhat of a foregone
> conclusion.\'
>
> Commissioner Thomas: \'Well, I don\'t know about a foregone conclusion
> but there have been Commissioners who have wanted to be re-appointed
> and who were in essence told, no. I think Frank Reiche was a perfect
> example of that. He did want to be re-appointed, but I think he heard
> through the grape-vine that even his friends didn\'t want him
> re-appointed (laughter).\'
>
> Author: \'But once you get to a confirmation hearing?\'
>
> Commissioner Thomas: \'Oh sure, but that's fairly common for the way
> our Federal Government operates. For the most part, if you can get to
> the stage where the President is willing to make the appointment and
> if you happen to be the opposite Party and the folks in the opposite
> Party leadership are willing to support you, once you get that far,
> usually you have fair sailing. On some of the confirmation hearings,
> occasionally someone would make a run trying to derail somebody. I
> recall when Commissioner Elliott was up for reappointment, Congressman
> Pete Stark (D-CA) wanted to derail her. She had come from the American
> Medical Association PAC, she had worked for years.\'
>
> Author: \'And she was getting a pension from it as well.\'
>
> Commissioner Thomas: \'Right, she was getting a pension. Congressman
> Stark has several run-ins with the AMA and AMPAC and was thinking that
> she was not the best of choices to be over here. So he took a run at
> her at one of the hearings but was not able to generate enough
> support.\'[^535]
>
> Author: 'And obviously if you vote against their guy, they\'ll vote
> against your guy because of the convention of dealing in pairs.\'
>
> Commissioner Thomas: \'Right.\'[^536]

Mitch McConnell (R-KY), reform opponent and former Chair of the Senate
Rules Committee, also made reference to the somewhat illusory nature of
the confirmation process. Speaking at the March 8 2000 hearing to
confirm Brad Smith\'s appointment he said:

> \'Ultimately both sides bluster and delay a bit, create a little free
> media attention and then move the nominees forward. In fact, the
> Senate has never voted down another Party's FEC nominee in a floor
> vote or even staged a filibuster on the Senate floor.\'[^537]

Therefore, despite the controversy that has surrounded some FEC
appointments, once individuals reach their confirmation hearing, it is
highly unlikely that nominees will fail to gain the necessary
constitutional approval from the Senate.[^538]

**[Nomination Source of FEC Commissioners]{.underline}**

The law set out that, \'no more than three members of the Commission
appointed under this paragraph may be affiliated with the same political
party\'[^539] and that four Commissioner votes were required in order
for the FEC to enforce the law.[^540] Therefore all actions of the
Commission had to be authorized by an affirmative two-third mixed
majority of votes. The law also mandated that the FEC Chairman and Vice
Chairman were to be elected by the Commission on an annual basis and
that they too should not be affiliated with the same political
party.[^541] The 1974 Act mandated that two Commissioners were to be
appointed by the President, two by the Speaker of the House and two by
the President *pro tempore* of the Senate.[^542] In a further departure
from constitutional orthodoxy, the House of Representatives was also
authorized to participate in the confirmation process.[^543] However,
the decision handed down in *Buckley* v *Valeo* (1976) ruled that
Congress had exceeded its authority in appointing Commissioners by
violating Article II, section 2 of the U.S. Constitution, something
commonly known as the \'appointments clause.\' Consequently, the
Congressional appointments to the Commission were deemed to have
intruded on the powers of the executive. Although the court directed
that only the President could appoint Officers of the United States,
subject to the advice and consent of the Senate, the Party leadership
within each chamber has continued the tradition of sending the President
a list of its \'preferred candidates.\'[^544] This tradition has led to
the development of an arrangement where the House and Senate make
alternate *de facto* appointments.[^545] The nominational model that was
established by the 1974 Act has been an enduring one. The division of
Commission appointments between President, House and Senate has meant
that Congress has continued to dominate the appointment process.
However, one might argue that this domination has been tempered on
occasions through the President\'s ability to make \'recess
appointments.\' Recess appointments allow appointees to serve without
confirmation until after the end of the Senate\'s next session.[^546]

Commissioner Mason offered a useful insight into the FEC appointment
process, drawing on constitutional theory, political reality and
personal experience.

> Author: \'How is somebody likely to get on the Commission? I know the
> constitutional theory, that they are supposed to be appointed by the
> President but that is not really the case. That Congress has a
> significant impact on who becomes appointed. I just wondered how that
> actually works?\'
>
> Commissioner Mason: \'I\'d start off with a broad comment about the
> American system. With Senatorial advice, gives Senators in particular
> and sometimes House members, gives them fairly substantial influence
> over Presidential appointments. Even sometimes when they are dealing
> with a President from the opposite party. In addition, there are
> specific statutes with most of the independent regulatory agencies,
> including the FEC, relating to party membership, five-member
> Commissions and only three members can be of any one party. On a
> typical Commission the President's Party has the majority but there
> are minority seats. The strongest tradition is that the President, in
> appointing candidates to the opposite Party's seats will defer to that
> Party, especially in the Senate. It is not universal by any means but
> has probably become stronger over the past twenty to thirty years. But
> it could depend a lot on the strength of the opposite Party in the
> Senate. If you ever got to the point where the President's Party held
> sixty or more seats, at that point, the President might well appoint
> people entirely of his own choosing, with little reference to the
> minority Party in the Senate. The current situation, where you have
> half-and-half, and have had for about a decade or so, prerogative
> becomes pretty powerful. The fairly formal and informal system by
> which these things are communicated involves, or at least did, under
> the constellation of the Clinton administration and the Republican
> controlled Senate, a letter from the Secretary of the Senate, who is
> appointed by the majority leader, to the President recommending a
> candidate for a particular job. Under Senator Lott (R-MS) who had
> effective power to make that recommendation, varied...depending on the
> job. For instance, with the Federal Communications Commission, Senator
> McCain (R-AZ) had a candidate, before McCain's Presidential run, a
> candidate who he favoured, who had some opposition from other
> Republican forces, and Lott ended up threading the needle by saying
> that he would defer to McCain on one recommendation, and defer the
> other to the Chairman of the House committee who had jurisdiction....
> who was more reliably conservative and someone much more to their
> liking. So in many ways the deference is to the Chairman of the
> committee but in that illustration, not always and not completely. In
> the case of the FEC this was at the time I was appointed deference was
> given to Senator McConnell (R-KY), who was both Chairman of the
> relevant standing committee and also Chairman of the Republican
> re-election fundraising, and so it was his recommendation that
> mattered most. The other residual piece of the tradition is that
> despite *Buckley*, you will recall the original statute appointed
> Commissioners directly by various people in Congress and that was
> disallowed by the Supreme Court. The political deal which ensued
> demanded that they retain the system of House and Senate seats. And
> so, Commissioner Wold, my colleague, was Congressman Bill Thomas
> (R-CA), Chairman of the relevant House committee, Commissioner
> Sandstrom next-door here, was recommended by Speaker Gephardt (D-MO),
> excuse me, give him credit, Leader Gephardt, and so there is this
> residual tradition whereby Commissioners hold House or Senate seats at
> the recommendation of key House and Senate leaders. The respective
> Party leaders, particularly in the House are particularly jealous
> about retaining that right.\'[^547]

Commissioner Mason\'s explanation of the appointment process has shown
how the *Buckley* v *Valeo* (1976) ruling on presidential appointments
has been relegated to the status of a constitutional fiction. The White
House\'s deferential attitude towards the legislature's \'preferred
candidates\' has enabled it to avoid unnecessary conflict with
Congressional leaders.[^548] The system also allows chief executives to
talk tough on campaign finance issues without them having to assume the
responsibility for the weak enforcement of the Statute.[^549] James
Barnes, writing in the *National Journal,* was critical of President
Clinton\'s unwillingness to fill vacancies on the Commission with
independent-minded individuals who might be willing to take a more
expansive regulatory attitude towards enforcement. He commented:

> \'President Clinton says he deplores campaign finance abuses. But just
> how tough a watchdog is he willing to put on the case? With four slots
> opening up on the six-member Federal Election Commission (FEC),
> campaign reform advocates say he has an opportunity to turn the timid
> agency around. So far, the President appears to be letting sleeping
> dogs lie. Reformers groaned in January when the White House
> re-nominated John W. McGarry, a 74-year-old FEC veteran, for a fourth
> term on the Commission. \"By continuing the *status quo*, you are
> signalling that you don\'t think change is necessary or that there is
> a need for stronger regulation in the campaign finance arena,\" said
> Kent C. Cooper, executive director of the Center for Responsive
> Politics. When it comes to FEC appointments, Clinton has been anything
> but bold. His two previous choices were also partisan retreads: in
> 1994, he renominated Republican Lee Ann Elliot and Democrat Danny L.
> McDonald to third terms on the Commission.\'[^550]

Therefore, undisturbed by the *Buckley* decision, the *status quo*
appears to suit the mutual interests of the White House and Congress.
Yet Larry Noble argued that this method of appointment had not always
been the case and that the President could legitimately reject the
individuals recommended to him by the Congressional leadership. When
asked about the subordinate role the White House has played in FEC
appointments, he commented:

> Larry Noble: \'It doesn\'t have to be that way. Now there is a myth
> that has come up, which came up frankly with the Brad Smith, or was
> repeated, with the Brad Smith appointment. Personally I like Brad
> Smith but at the time the Brad Smith appointment came up, what was
> said by the White House, the Clinton White House was, the Republicans
> get to pick their own Commissioner, that the White House doesn\'t have
> any say in it. In fact that\'s not true. Commissioner Tom Harris, who
> was a Democrat, who was affiliated with labor, the National Right to
> Work Committee objected to him and Ronald Reagan refused to reappoint
> him to the Commission. Which is how Scott Thomas got his seat. What
> that showed was that a President could say to the other side, to the
> Democrats, a Republican President, I don\'t like this guy, I don\'t
> want him, give me some other names. And accordingly the Democrats gave
> him other names. So the idea that Clinton had no choice in the matter
> was just not true, but that is the conventional wisdom.\'
>
> Author: \'That was unusual though, wasn\'t it?\'
>
> Larry Noble: \'That was unusual, yes. So you start from the premise
> that they each have their seats, then you add to the mix that FEC
> appointments are not considered that important and what happened with
> the Clinton administration was that they traded the Brad Smith
> appointment for judges. So it became an important seat because Clinton
> was able to get a number of judges.\'[^551]

It was President Gerald Ford who initially sought to defer to the will
of Congress over FEC appointments. By ruling that the Commission had
been appointed in an unconstitutional manner, the *Buckley* decision
meant that the FEC was no longer authorized to exercise its executive
powers.[^552] Post *Buckley*, there was intense pressure to reconstitute
the Commission so that it could administer the Public Funding System
necessary for the candidates to fight the 1976 presidential
election.[^553] With his authority strengthened by the *Buckley*
decision, Ford could have nominated individuals of his own choosing. Yet
he chose not to, preferring to re-nominate all those originally
appointed under the pre-Buckley arrangements dominated by
Congress.[^554] Ford was unlikely to try and assert presidential power
because Congress was determined to reassert its own authority in light
of Watergate and Vietnam. Additionally, unlike traditional incumbents of
the White House, Ford lacked any democratic legitimacy. Ford won the
Presidency because of Spiro Agnew\'s tax evasion and the impeachable
offences of Richard Nixon. Finally, as Ford was a former minority leader
in the House and given his unique political circumstances, he was
determined to try and maintain an effective and harmonious relationship
with Congress.[^555] Less than a year later, President Jimmy Carter was
thwarted in his attempt to appoint Susan King to the Commission. She had
the support of Common Cause and the United Auto-Workers Union. However,
House Speaker, Thomas \'Tip\' O\'Neill (D-MASS) objected to Carter\'s
choice, calling her a \'do-good Common Cause type.\' Determined to
secure an appointment of his own choosing, O\' Neill lobbied the
administration and obtained a seat on the Commission for John Warren
McGarry, a former employee of the House Administration Committee.[^556]

**[Independence of the Commission]{.underline}**

The most frequent criticism directed at the Commission is that it lacks
independence. Former FEC Chairman Thomas Curtis (1975-76) described the
agency's lack of independence as a \'serious impediment to the success
of voluntary compliance.\'[^557] Herbert Alexander also described how
the Commission had been circumspect about taking a lead in the campaign
finance debate. He commented that \'the FEC continually looks over its
shoulder for fear that Congress is watching and would
disapprove.\'[^558] Others have highlighted the FEC\'s unique mission as
a body that regulates those who control its budget, powers, staffing
level and the appointment of it's Commissioners. Although the
Commission's independence has been undermined by the micro-management
strategies of Congress, something that usually occurs under the guise of
legitimate \'oversight,\' the focus of this discussion remains the
appointment process.[^559] However, one might note that whilst the
reform community desires an independent blue-ribbon Commission,
insulated from the political realities of the day, others desire a model
that reflects and represents that political reality.[^560] The concept
of a truly independent Commission becomes a normative one. Therefore the
best way forward in this discussion would be to examine the Commissioner
selection criteria set out in the law. It directed that, \'Members shall
be chosen on the basis of their experience, integrity, impartiality, and
good judgement.\'[^561] The first two criteria, \'experience and
integrity,\' are worthy attributes and rarely present too many
difficulties for those charged with making such assessments. It is
customary to submit a comprehensive *curriculum vita* to the Senate
Rules committee, which aids them in evaluating the experience of the
nominees. Additionally, it is also customary to solicit and to submit
numerous written statements of support from highly placed individuals
known to the nominee. These statements are usually for the record, but
supporters might have an opportunity to articulate their faith by
reading a statement out before the committee. Although the Senate Rules
Committee will have access to the FBI files of nominees, the supporting
statements usually serve to establish the integrity and stature of the
nominee. However, controversy arises in defining and assessing the third
and fourth criteria, \'impartiality\' and \'good judgement.\' Those
outside the traditional two-Party system have

argued that the bipartisan nature of the FEC precludes the possibility
of impartiality.[^562] Additionally, the concept of \'good judgement\'
is also an elusive one. For example, might one attribute \'good
judgement\' to a Commissioner who views his/her role as representing the
interests of incumbent politicians and other members of the regulated
community, or one that sees their role as defending the more abstract
concept of the public interest. Although these two roles are not
necessarily mutually exclusive, they often can be.

Any pretence of impartiality was dispelled when Senator Ted Stevens
(R-AK), ranking member of the Senate Rules committee, commented:

> \'We appoint these people on a political basis, knowing full well that
> they are partisan; they are partisan in a totally political sense. The
> FEC is an equally balanced Commission.\'[^563]

Joshua Shenk, writing in *U.S News and World Report* opined:

> \'The FEC\'s leadership is a cozy deal. Congress controls who becomes
> a Commissioner: The President merely rubber-stamps recommendations
> from Capitol Hill. That means Commissioners owe their \$115,700-a-year
> jobs to the party machinery. When the regulated control the
> regulators, oversight goes soft.\'[^564]

Francis Wilkinson, writing in Rolling Stone magazine, expressed similar
views:

> \'The fact that FEC regulators rely on the regulated members of
> Congress for the continuation of their paycheques is a fairly gaping
> flaw in the electoral system. It\'s comparable to allowing criminal
> defendants control over the career of judges.\'[^565]

Fred Wertheimer, president of the Washington-based public interest
advocacy group Democracy 21 and former president of Common Cause, has
been highly critical of the Commission's lack of independence and weak
enforcement efforts. When referring to FEC Commissioners, he commented:

> Fred Wertheimer: \'You have to understand the mindset, the
> Commissioners of this agency, is that their constituency is the
> regulated community. That means members of Congress, political Parties
> and big donors as opposed to the constituency of the general public.
> Of making sure there is a sense that people had better comply with the
> law; the normal standards and philosophy of law enforcement do not
> apply to this agency. It\'s like you start off and you try to figure
> out how to make this work for the potential violators, rather than the
> potential community. If that is correct, if that is the mind set, then
> you are trying to minimise your impact on this community and certainly
> the most powerful players in this community. And the Commissioners are
> sent there, they're not sent there on innocent terms. Only one of
> these Commissioners, Scott Thomas, is classic mode, public service
> mode, he\'s there to do the job. That doesn\'t mean that from my
> standpoint he does everything right, but he fits one mould. He was
> willing to take on the Democrats, he\'s been willing to take on
> Clinton, but by and large, this is kind of a partnership and if people
> stray, they get told in no uncertain terms by the Hill.\'[^566]

Donald McGahn, general counsel at the NRCC also alluded to the FEC\'s
lack of independence and the parochial nature of appointment.

> Donald McGahn: \'The Commission is nothing more than Congress\'
> constitutional power to be the final judge in its own elections. That
> is where it comes from, the creation of House and Senate. So because
> of that, how independent can you be? When with the stroke of a pen,
> you\'re out of business tomorrow. It\'s not really like other
> agencies. It\'s not an executive branch agency. You have the President
> who nominates and the Senate confirm, the President appoints. But
> it\'s not like other agencies because you have the charge of the fox
> guarding the hen-house. You gonna appoint your guys to make sure you
> are taken care of. The original intent was for it to be a glorified
> Congressional committee. That\'s the way I see it. But over time it
> has got more independent and more money. The flip side is that you
> have a certain Senator who wants their guy on the Commission, just cos
> they want them. You can\'t really stop that but that doesn\'t really
> get you the most qualified person either.\'[^567]

Notwithstanding the significant patronage power exercised by certain
Congressional leaders, the Commissioner appointment process can be a
pluralistic affair. For example, the appointment of Commissioners
involves a political process that accommodates and in some ways gives
indirect representation to the input of sectional interests like
business, labor and political Parties. These bodies participate in the
appointment process by articulating their nominational preferences to
the Party leadership. That input helps to shape the composition and
outlook of the Commission. Despite that influence, Commissioners do not
become the mere delegates of those interests but their well-known views
about regulation and certain sectional affinities do feed into the
decision-making process. Herbert Alexander criticised the factional
nature of FEC appointments, commenting:

> \'The process of appointing members of the Federal Election Commission
> has been a continuing source of conflict. The opposing influences of
> labor and business frequently are brought to bear on appointments. The
> conservative and liberal wings of both Parties screen each nominee,
> giving special attention to his or her views. Expertise and political
> cronyism often vie as criteria for appointments.\'[^568]

Commissioner Mason expressed the view that \'using appointments to
affect the enforcement process is absolutely a normal part of the policy
process.\'[^569] One might argue that the views of sectional interests
have even become institutionalised in particular seats, taking on an
enduring character.[^570] This view suggests continuity between
departing Commissioners and their successors. Cowett appeared to support
this thesis when he wrote:

> \'One very ironic finding of the case study on advisory opinion voting
> is that while the President (and Congress) seek to replace
> commissioners with whom they are not in agreement philosophically, the
> replacement Commissioners may end up voting in a very like manner as
> the member being replaced. As one Commissioner jokes about this
> phenomenon: \'the seats are infectious.\'[^571]

Francis Wilkinson commented that, \'In 86, Democrat Scott Thomas
inherited the Commission's AFL-CIO seat.\'[^572] Although Commissioner
Thomas and Jan Baran rejected the idea that sectional interest or
particular philosophical views enjoy a longevity that outlives any one
Commissioner, Larry Noble was far less dismissive of the idea.
Commissioner Thomas was asked:

> Author: \'Do particular seats on the Commission have an enduring, or
> institutionalised character? For example in Rolling Stone magazine you
> were described as sitting on the AFL-CIO seat.\'
>
> Commissioner Thomas: \'I think that is obviously an over-statement. I
> think if you wanted to draw a line, you could say that I had been
> executive assistant for my predecessor, Tom Harris, and before he was
> appointed as one of the original Commissioners had been associate
> general counsel at the AFL-CIO. But obviously I had never worked for
> the AFL-CIO and I had no labor, no labor law background. Even so, it
> is pretty hard to say that I have any ties to the labor movement now.
> That is not to say that over the years I have not got to know many of
> the political people involved in the AFL-CIO as I have with the RNC,
> the Republican National Committee, because they have business before
> the FEC. They tend to come to the FEC when they have got issues, so
> I\'ve got to know a lot of them. But it\'s kind of hard to say that
> I\'m the AFL-CIO lackey at the FEC. If you look at my voting record,
> I\'ve probably voted against the AFL and labor unions as much as I\'ve
> voted against those on the business side of things.\'
>
> Author: 'But more generally, across the board, in other seats as well?
> You couldn\'t say that a particular seat is perhaps representative of
> particular interests, or that people on the outside see a particular
> seat as someone they could go to that's sympathetic to them?'
>
> Commissioner Thomas: \'Well I think it is probably true that some
> Commissioners have friends and connections that were helpful to them
> in finding their way to the FEC. I suppose those friends and
> connections if they have an FEC issue, will have a natural connection
> at least in that area and want to go to that person and ask how to get
> the FEC to help on that particular issue. But that would be my
> situation as well. There are folks that I know that are involved in
> helping the various unions with their legal campaign finance work. I
> suppose I am a natural person for them to go to and say, \'hey we have
> a legal issue. What do you think we ought to do about that and should
> we go to the FEC and ask for an advisory opinion?' Those kinds of
> connections are very logical. So the way that works out, you could go
> down the current list of Commissioners and if you wanted to, you could
> probably find out that there were certain people, or certain
> organisations who were helpful to them in finding their way to the
> FEC.\'
>
> Author: 'But these relationships are not institutionalised, they\'re
> not kind of long-term, as people come and go, things change.'
>
> Commissioner Thomas: 'Exactly, I think it\'s much more along those
> lines. It\'s hard to say that there is a union seat at the FEC, or
> that there is a right wing crazy seat.\'[^573]

Jan Baran was asked:

> Author: \'Do particular seats on the Commission have an enduring or
> institutionalised character? For example, in an article in *Rolling
> Stone*, Scott Thomas was described as sitting in the AFL-CIO seat.\'
>
> Jan Baran: \'No, I don't think so. I think that can only be said
> because there have only been two particular Commissioners on that
> particular seat, over the past 26 years now. He was the executive
> assistant to Tom Harris, who was former deputy general counsel of the
> AFL-CIO, although Scott has never worked for a union himself.
> Commissioner Thomas has never had a job in his adult life outside that
> agency. He started work there as a law clerk, when he was at George
> Town Law School, in 1977. He then joined the general counsel staff
> after graduation, then became an executive assistant, then a
> Commissioner. He may break the record for longevity and collect a
> pension still a relatively young man. I think it is more accurate to
> say that there are Republican seats, and Democratic seats, but I don't
> think it has been carved out in any other type of way. I don't think
> that the labor unions would view Scott Thomas as their guy. Certainly
> not in the way Tom Harris clearly was. That was where he worked for
> twenty-five years.\'
>
> Author: \'I just wondered if there were particular sections of society
> or the political community that see a particular seat as theirs, or a
> particular Commissioner as kind of representing their interests?\'
>
> Jan Baran: \'No, but I think there are Commissioners over time that
> are strong advocates for a particular point of view. I think Tom
> Harris when he was on the Commission was undeniably a very strong
> advocate of organised labor, who watched out for their interest very,
> very assiduously. I think when she was there, Commissioner Aikens was
> a strong advocate of corporate political action, political action
> committees. She was one of the four Commissioners who approved an
> opinion that in 1975 allowed a Company to have a political action
> committee, Tom Harris being one of two who dissented against that. And
> Lee Ann Elliot was also a big PAC supporter, she came from a PAC.
>
> Author: \'AMPAC.\'
>
> Jan Baran: \'AMPAC, right. But now that the composition of the agency
> has changed and we've got new people there, they actually come from
> different backgrounds. David Mason comes from a Senate foundation,
> Daryl Wold was a practitioner in California, Brad Smith was a
> Professor.\'

Larry Noble was also asked:

> Author: \'Do particular seats on the Commission have an enduring or
> institutionalised character? For example, in an article in Rolling
> Stone magazine Scott Thomas was described as sitting on what\'s known
> as the AFL-CIO seat?\'
>
> Larry Noble: \'That\'s because the seat was originally held by Tom
> Harris, who was a very strong labor supporter. To a certain degree
> there is some sense that Commissioners bring a certain perspective. I
> think traditionally, but it\'s hard to say traditionally, as there
> have only been two Commissioners in the Scott Thomas seat. Tom Harris
> was definitely from the AFL-CIO, he was appointed because of his ties
> to the AFL-CIO.\'[^574]
>
> Author: \'He was General Counsel to the AFL-CIO.\'
>
> Larry Noble: \'Yea and had a long history at the AFL-CIO. Then there
> was Scott Thomas, so you only have two Commissioners in that seat.
> Yea, I think Commissioner Thomas tries to bring somewhat of a union
> perspective to things. I think on the other side, Lee Ann Elliot\'s
> seat, she\'s now left, she definitely saw herself as the champion of
> corporate interests. Yea there is some of that. I think it has
> probably got weaker over the years, but yea there is some of that,
> sure.\'
>
> Author: \'Are there any other seats that you can think about that
> would have an institutionalised character? Perhaps a representative
> role in a way.\'
>
> Larry Noble: \'It\'s gotten vaguer, I think right now I would say,
> \...I think Commissioner Sandstrom tries to bring a Party perspective,
> a political Party perspective and he\'s a Democrat. He brings a
> Democratic Party perspective. Has that traditionally been true?
> Frankly, John McGarry, who he replaced, was from the House of
> Representatives, not a member of the House, but was on a committee of
> the House, I think. Tip O\' Neill. So yes, there is that perspective
> on the Seat, yes. On the Republican side, the Lee Ann Elliot seat, Lee
> Ann Elliot herself voted a corporate perspective. Joan Aikens was more
> of a Republican Party perspective. It has evolved somewhat, but there
> were some views that Commissioners held and there were some places
> where they came from, but to a certain extent it is being diluted, but
> it\'s still there to a certain extent. Trying to think about what I
> would say about the present Commissioners. Brad Smith brings a very
> deregulation view, as does David Mason. Now I would say that probably
> Daryl Wold brings more of a Party perspective to it I think, local
> political Party perspective. That\'s where he came up from but I
> don\'t think they consciously think about that when they appoint
> Commissioners as much as they may have at one time.\'
>
> Author: \'It\'s just something additional to try and make sense.\'
>
> Larry Noble: \'Yea, I think you can look at it that way. I think
> definitely with Commissioner Sandstrom, you can look at a Party
> perspective. He brings a Party perspective to it, as does Commissioner
> Mason, and Daryl Wold.\'[^575]

Perhaps with the exception of Scott Thomas, who was appointed as a
compromise choice at the time, one might find it difficult to conclude
that Commissioners are appointed because of their \'impartiality.\' Not
only are they appointed as Republicans or Democrats, but also as
individuals with well-known views as regulators, or deregulators, as
defenders of labor, corporate interests, Parties or PACs. As Robert
Mutch said, \'Congress wants more than the statutory balance between
Republicans and Democrats on the Commission, Congress wants the right
kinds of Republicans and Democrats.\'[^576] Yet the complaint of the
reform community, and people like Fred Wertheimer in particular, is that
the FEC fails to represent the interests of the electorate or the
general public.[^577] One might argue that Commissioners exercise their
\'good judgement\' on behalf of those interests whom they have a natural
affinity with, or in the furtherance of a particular philosophical view.
Although public interest advocates see this as something undesirable, or
unethical, others view this as perfectly legitimate. For example, when
asked about the Bradley Smith appointment, Commissioner Thomas expressed
the opinion that because a certain percentage of the American public
held an ultra deregulatory view concerning campaign finance issues, one
might reasonably expect those views to be represented on the Commission.

> Author: \'It just strikes me as odd that someone that doesn't believe
> in the statute would want to be on the Commission.\'
>
> Commissioner Thomas: \'I gather his interest in particular is that he
> likes the subject area, as much as anything. But I suppose that he
> does want to the extent possible to push Commission decision-making to
> the point where it will use express advocacy tests where he thinks
> it's appropriate as opposed to a common-sense, more free-form
> approach. And I'm sure that is a goal of his to deregulate some of the
> Commission's enforcement efforts and approaches, and to get the
> Commission to back off some of its enforcement efforts. That I think
> is to be expected. But if you think about it, one sixth of this
> Commission taking that approach probably compares with, I\'m sure, at
> least one sixth of the American population if you gave them that
> question.\'
>
> Author: \'So it\'s a fair view that\'s out there and therefore it\'s
> legitimate that it\'s represented on the Commission?\'
>
> Commissioner Thomas: \'One could argue that.\'[^578]

[**The Role of Senior Election Lawyers in the Appointment of FEC
Commissioners**]{.underline}

As their six-year term nears expiration, Commissioners have been obliged
to lobby for reappointment. Of strategic importance to any
Commissioner's chances of securing reappointment, are the views of
Washington\'s leading election lawyers. The most influential lawyers are
Bob Bauer, representing Democrats, and Jan Witold Baran, representing
Republicans. The scenario where Commissioners lobby to secure the
approval of their respective Party's election lawyers is clearly at odds
with the independence of the Commission. For example, a Commissioner
seeking to enforce the law might find it difficult to cast their vote
against a respondent who was being represented by an election lawyer
whose approval was necessary to gain reappointment. Perhaps the most
ethical option for a Commissioner who was placed in this position might
be to abstain[^579] or recuse.[^580] Francis Wilkinson described the
close relationship between the regulator and regulated as follows:

> \'Undercapitalized and forever struggling to make do, the FEC
> resembles a small family business that never quite turns a profit.
> Everyone in the tight, incestuous world of the FEC is known to the
> others by his or her first name. The commissioners are Lee Ann and
> Danny, John and Joan, Scott and Trevor. The two dominant election law
> attorneys Bob the Democrat and Jan the Republican, have a warm rapport
> and even jointly filed an official comment with the FEC recently. Like
> favourite uncles, Bob Bauer and Jan Baran know the family\'s most
> intimate secrets. The fact that the family is charged with dispensing
> justice to Bob and Jan\'s powerful clients, who, in turn, effectively
> determine the family budget and individual career prospects, helps to
> keep everyone close.\'[^581]

Perhaps the most salient examples of Jan Baran\'s influence in selecting
Republican nominees to the Commission were the appointments of Trevor
Potter, who was appointed November 22 1991 and, more recently, Michael
Toner who was appointed March 29 2000. Trevor Potter and Michael Toner
had both been lawyers practising in the area of election law and Federal
ethics at Wiley, Rein and Fielding, the Washington D.C. firm where Jan
Baran is Partner and Head of the Election Law and Government Ethics
division.[^582] It was likely that Jan Baran recommended Potter to the
White House as a reliable Republican voice on the Commission, having
both worked together on the 1988 Bush campaign.[^583] However,
Commissioner Potter was to adopt a more independent outlook than anyone
had expected.[^584] Alex Vogel, General Counsel at the NRSC, commented
about the appointment:

> Alex Vogel: \'When the President appoints someone to the Supreme Court
> well I'm gonna appoint this guy, he's a Republican once he's on the
> court, he's there for life, who knows how he's gonna vote!\'
>
> Author: \'Which has happened before.\'
>
> Alex Vogel: \'Which has happened before; with Commissioners, it's the
> same thing.\'
>
> Author: \'Trevor Potter.\'
>
> Alex Vogel: \'Trevor. He's the gold standard. Trevor was a guy, Jan's
> protégé, everyone knows where Jan stands. Trevor gets on the
> Commission and immediately starts voting against Jan\'s clients.
> People were saying, what? Then people were saying well, Trevor went
> native, say what you will about Trevor, he voted against Republican
> people. Trevor was a fourth vote. It can happen against either
> side.\'[^585]

Lawyers may also find themselves in a position where they are deemed
insufficiently supportive of a Commissioner's effort to gain
reappointment. Election lawyers are likely to be mindful about the
possible retaliatory consequences of any tepid responses they make to
Commissioner overtures. Wilkinson described how:

> \'Danny Lee McDonald spent much of the past year alternately sulking
> and sucking up because the House Democratic leadership and its lawyer,
> Bob Bauer, did not embrace his reappointment.\'[^586]

Commissioner Mason was also asked about this issue:

> Author: \'It was just that there was criticism that Commissioners
> would be lobbying for reappointment whilst sitting on enforcement
> cases?\'
>
> Commissioner Mason: \'Sure and again because Congress is the regulated
> entity that just makes it an even more sensitive problem than it would
> be. Both from the perspective of the Commissioner subject to some sort
> of influence from Congress, but also to the issue of would a
> Commissioner who still holds power for some period of time represent
> an implicit threat to members of Congress who failed to support him.\'
>
> Author: \'So it\'s not just one way traffic then?\'
>
> Commissioner Mason: \'I don't think (pause) it would be a losing game
> for a Commissioner to do that in the long run, so I don't think that
> has happened in practice.\'[^587]

James Barnes, writing in the *National Journal,* quotes Jan Baran on
this issue:

> \'I am enthusiastically for the reappointment of all sitting
> commissioners and so are the three dozen or so clients that I
> represent before them,\' Baran joked. \'You don\'t have to be a
> nuclear physicist to think that if somebody wants to get reappointed,
> it has to go through essentially a political process to do that, he
> added, choosing his words carefully. \'Anybody who is engaged in that
> political process has to decide if they are going to say anything
> about that reappointment, and if so, what they are going to say. And
> in any case they have to live with the consequences of their statement
> or actions.\'[^588]

The appointment process is a political one, with Congressional leaders
and their election lawyers being the most significant influences. That
process has led to a Commission that reflects not only the interests of
those who appointed them but also the fundamental disagreements
Americans have about political finance regulation. The Commission is not
and has never been the \'blue-ribbon\' independent panel the reform
community has long advocated. However, some thought the introduction of
term limits might reduce the appearance of cronyism and inject greater
independence into the Commission.

**[Introduction of Term Limits for FEC Commissioners]{.underline}**

In 1997 the Senate introduced term limits for FEC Commissioners,
something that was included in the Treasury and General Government
Appropriations Bill. Many groups who had campaigned for a more
independent FEC saw the change as a positive one. For example, Public
Campaign, a non-profit, non-partisan group who opposed the influence of
special interest money on public policy commented:

> \'Every Commissioner now serving has been at the agency for at least
> two six-year terms and one has been there since the agency opened it
> doors twenty years ago. Because they usually want to keep their
> lucrative positions, making over \$115,000 a year, Commissioners are
> hesitant to interpret or enforce the law in a way that would hurt
> their chances of reappointment. Term limits for Commissioners would
> enable them to make more independent judgements regarding violations
> of the law.\'[^589]

Therefore, as Commissioners have no prospect of being reappointed, many
in the reform community argued that individuals would become less
mindful about making unpopular enforcement decisions. Similarly, many
Republicans expressed their support for the introduction of term limits.
Larry Craig, Chairman of the Republican Policy Committee in the Senate,
summarised their views in a 1998 vote analysis. Craig wrote:

> \'The FEC is the most politically sensitive agency of the Federal
> Government. Any of its actions can raise serious political,
> ideological and constitutional questions. For it to have any
> appearance of objectivity, its powers must be evenly divided between
> the two Parties. For that reason, by law, three of its Commissioners
> are Republicans and three are Democrats.[^590] If there were any
> imbalance, any actions the FEC took would appear to be, or would be,
> biased. Last year, Congress acted to increase the objectivity of the
> FEC by putting term limits of 6 years on FEC Commissioners. If any
> Commissioner had lifetime tenure and his or her political views
> changed to support the other party, then the balance of the Commission
> would be destroyed. By instituting term limits, Congress further
> safeguarded objectivity.\'[^591]

Despite Craig\'s rhetoric concerning the creation of a more independent
Commission, the following rider tempered the practical effect of term
limits. The law stated that \'this term limit applies to individuals
nominated by the President to be members of the Federal Election
Commission after December 31, 1997.\'[^592] The FEC notes in its 1997
*Annual Report* that President Clinton \'announced three nominations and
his intention to nominate a fourth prior to the December 31 deadline.\'
It continued, \'if the Senate confirms these nominees, they will be
eligible for one additional term of office.\'[^593] Therefore, because
of the \'grand-fathering\' clause and serving out unexpired terms, some
of the current Commissioners may serve until 2009.[^594]

A number of interviewees made compelling arguments against the
introduction of Commissioner term limits. In fact, if one considers the
four standards set out in the FECA Commissioner appointment criteria,
\'experience, integrity, impartiality and good judgement,\' term limits
are likely to hinder the recruitment of individuals with such qualities.
Donald McGahn opined that few individuals of stature would be willing to
sever their business/professional relationships to secure a position in
public service that only lasted for six years.

> Author: \'Now you have these term limits, do you think this will have
> any significant effect\...now that Commissioners cannot lobby for
> reappointment?\'
>
> Donald McGahn: \'It could, although I am aware that there is lobbying
> going on as we speak. What you kind of had was that you had
> Commissioners on there for a long long time. Scott Thomas was in the
> counsel's office, I mean he is FEC through and through, and he brings
> to the table a certain perspective. Term limits would change the
> perspective every so often, by brute force if nothing else. But then
> you are gonna have to ask who is going to take off six years to go and
> be on the FEC? It\'s not like being the Head of the Security and
> Exchange Commission. It\'s not a golden parachute to go to the Federal
> Election Commission and cash out. I mean what are you going to do with
> it once you get done? Trevor Potter was a Commissioner, he makes a
> good living in private practice, writes a lot. Gets his name out
> there. He's done it.\'
>
> Author: \'I put this to Ronald Harris (FEC Press Officer) and he said
> people want to go there because of public service.\'
>
> Donald McGahn: \'That could very well be, I mean Brad Smith is a
> Professor. So for him it makes sense to do a Commission stint, he's
> published on this stuff and you know, OK. He's not cashing out but it
> furthers him down his career. Dave Mason's an academic. Daryl was a
> California election law lawyer. But you know, do you want academics?
> Or do you want people like me? Or people like Bob Bauer on the other
> side of the isle, who actually know where the bodies are buried and
> how (pause) where the real loopholes are, not the imagined
> loopholes.\'
>
> Author: \'Why are people gonna take six years off, when Congress says
> you have to break all these ties, don't you?\'[^595]
>
> Donald McGahn: \'Right, right.\'
>
> Author: \'So that will have a significant effect on your livelihood
> and your career.\'
>
> Donald McGahn: \'You could get like a thirty year old, thirty
> something who could do it and then get off and still make partner in a
> law firm before he gets entangled in all sorts of outside financial
> interests. Other than that, who else is gonna want to do it who
> understands campaigns?\'[^596]

Commissioner Thomas was asked:

> Author: \'What do you feel about term limits, in terms of their
> advantages and disadvantages? I'm talking about Commissioner term
> limits. Because we've got this grand-fathering as well haven't we,
> so?\'
>
> Commissioner Thomas: \'Well, I've always thought that term limits are
> a goofy idea anyway, whether its members of Congress, even for
> President, certainly for Commissioners at the FEC. My sense of it is,
> if you've got somebody who\'s competent and everybody thinks is doing
> a good job and would be a real asset to continue on, that person ought
> to be able to do so. In this area, perhaps more so than most, having
> institutional memory, having experience, having an ability to see
> where all of the different programmes and processes and budgeting
> efforts fit together and how things can be improved, is beneficial. So
> I have always\...when I've been up for reappointment, I've tried to
> let folks know that I think that I've done a good job and that I point
> to some of the areas that I've worked on that have improved the
> agency's processes and issues that is has pursued. And make the pitch
> that that kind of work ought to be continued. But there are some who
> think that just bringing in new blood is enough of a benefit in and of
> itself to warrant to force some folks out. I would always,
> \....particularly in the area of elected positions outside in the
> Congress, it seems absurd to deprive the whole electorate of the
> chance to vote for someone.\'[^597]

Larry Noble, former General Counsel at the FEC and now Executive
Director at the Center for Responsive Politics, expressed his opposition
to Commissioner term limits.

> Author: \'In the past, the Centre for Responsive Politics has
> criticised the Commissioners for making enforcement decisions, whilst
> lobbying for reappointment. In your view, what are the advantages and
> disadvantages of the introduction of term limits for Commissioners
> introduced in 1997?\'
>
> Larry Noble: \'I took a strange view, in that I departed from the
> common view held in the reform community. I\'m against term limits. Or
> in favour of term limits, if the term is very long. Perhaps that\'s
> the best way to put it. I\'m against short term limits. And the reason
> for that, and I\'ve seen this happen you give them one six-year term,
> they\'re not looking to get reappointed, they\'re looking to get
> another job. So human nature what it is, they start worrying about
> angering their allies, be they Republican or Democratic. Are they
> gonna get another job in another administration?\'
>
> Author: \'Oh I remember you!\'
>
> Larry Noble: \'Yea, so frankly, I think, I know I saw that happen.
> Commissioners switch positions as their terms came up. Where they knew
> they weren\'t gonna get reappointed, or they decided they didn\'t want
> to get reappointed, they would start pulling back from an enforcement
> standpoint. That is the distinctive impression, and I\'ve actually
> been told this off the record, that certain Commissioners have been
> warned that they were burning bridges. So the idea to me of having a
> six-year term limit does not help at all and frankly it frightens me.
> In the perfect world, have a two-year term, and you only get
> reappointed if you\'re doing a good job. If you had a President who
> said I\'ll only reappoint Commissioners who are doing a good job of
> enforcement. The problem is that that is not reality so you look at
> other models of how you get politics out of the system. And the
> starkest model is the Federal Judiciary. A lifetime appointment and I
> think they do that with the election office in Canada. So you
> basically have a lifetime appointment and you get that out of the
> process. You don\'t have to worry now about who you are going to
> anger. You have this job for life. That\'s not realistic when it comes
> to Commissioners. So I would look at the next one, which would be the
> FBI. Make it a ten, fifteen-year appointment. Then if you want to get
> it term limited, then at least give them a number of years, where they
> don\'t have to start worrying about what\'s going to happen.\'[^598]

Interviewees expressed their support for the introduction of term limits
often commented on the need for \'fresh ideas\' and \'new blood\' at the
Commission. Others argued that a more regular turnover of Commissioners
would end what they saw as an undesirable isolationist institutional
culture. Jan Baran was asked:

> Author: \'What view do you have about the introduction of term limits
> for Commissioners and will this change or stop the process that you
> have described where election lawyers and Congressmen are lobbied to
> appoint or reappoint Commissioners?\'
>
> Jan Baran: \'I think its probably a good idea, because it increases
> the likelihood that there will be some changeover, new blood at the
> Commission and will introduce individuals with different perspectives
> and new ideas on a more regular basis. It will also reduce the
> pressure on Commissioners to seek their own reappointment to the
> Office. I don't think it\'s going to fundamentally change most of the
> problems, but it will ensure that at least some new ideas will be
> introduced at an agency, which by its rules is increasingly isolated.
> Cloistered. Twenty-five, thirty years ago, it wouldn't violate a rule
> to talk to Commissioners about problems, or pending advisory opinions,
> or giving them some idea about what people are thinking outside, but
> now, like other agencies, you have to observe these *ex parte* rules
> and the Commissioners tend to lead existences that basically isolate
> them from the outside, not just political forces, but anybody's
> opinion, its all formalized. They don't go to political functions
> anymore, they do go to political conventions every four years, they
> stopped that for a while. And they never actually see any of the
> respondents that their staff is investigating, in fact they never
> directly hear from the lawyers representing the people being
> investigated. They are actually very isolated from the interface that
> the community has with that agency in terms of compliance and
> enforcement.\'[^599]

Commissioner Mason expressed a similar view concerning isolationism at
the Commission and asserted the need for fresh ideas. Whilst unconvinced
about the merits of one six-year term, he was not opposed to term limits
in principle.

> Author: \'How do you view the introduction of term limits introduced
> in 1997? On balance, do you think they have more advantages than
> disadvantages?\'
>
> Commissioner Mason: \'Well, in practice its very difficult to see
> because they haven't really affected Commission operations. In theory
> I'm in favour of term limits, or rotation schemes. I don't think one
> term is sufficient, that makes Commissioners too much like tourists.
> At least to the staff who run it. But at least at this Commission in
> particular is a good illustration er, when I arrived courtesy of
> Trevor\'s seat being vacant, the other five Commissioners when I was
> nominated were here, the most recent arrivals to the Commission had
> come in the early 1980s. Commissioner Thomas, I think had been
> appointed Commissioner in 86, but he'd been here long before then as a
> Staffer. So you had roughly the same group of people interacting from
> about 1981 to 1998. And that I believe, is a problematic situation. It
> didn't have to do with those particular people having any unique
> deficiencies or anything like that, it just establishes a policy group
> and it doesn't change very much over that long period of time. You do
> tend to run into some problems. And Trevor brought in and out was not
> enough to fundamentally change things. So I think from the history of
> the Commission there is a fairly good argument that you need to do
> something to get more turnover than there had been, at least for that
> 18-year period.\'
>
> Author: \'Since the removal of *ex officio* members, some of your
> Republican critics say that the Commission is increasingly cloistered
> and that this isolation is undesirable. How would you respond?\'
>
> Commissioner Mason: \'Well, again I'm not sure that the removal of
> *ex* *officio* members has really changed the Commission that much. I
> think it was part and product of the lack of turnover that I mentioned
> amongst the Commissioners, and the staff. A lot of the senior staff
> have been here since the Commission opened up. So people have got kind
> of set in their ways and thinking, and I think that is a valid
> criticism to agree. It\'s been addressed fairly substantially by
> investing in new Commissioners. But there is again related to Congress
> as a regulated entity. When I worked at the defense department in
> legislative affairs, there was a very robust communication back and
> forth between the defense department and the legislative branch. We
> had annual appropriation and authorization bills. We had vigorous sets
> of hearings, we had instructions, or requests that could be
> communicated through explicit legislation and we could do things
> through letters from committee chairmen who are obviously in positions
> of power, down to informal inquiries and phone calls from members of
> staff from low-ranking members of Congress, up and down the scale
> quite a bit, and so you aren't in any sense isolated. The general
> critique was that the system was too open and the department was too
> open to outside influence. Not per se, in an improper way, but rather
> in a way that prevented sound management and sound policy making. The
> problem wasn't so much corruption, as too many cooks spoiling the
> proverbial broth. And I think that criticism was valid there, but that
> was my previous executive branch experience. Here it is very, very
> different. Members and staffers, despite the sometimes vitriolic
> statements you read about general policy, are very reluctant, and very
> careful about attempting to intervene. In all sorts of informal
> contacts that were an absolute everyday occurrence in the defense
> department are very little in evidence here. Both sides are very
> sensitive, and very careful to this phenomenon, that dealing with
> policy makers are also dealing with people who they regulate. And I
> think that care on both sides makes it very difficult to have more
> formal and informal contacts but more robust contacts, that you see at
> other agencies. While my sense is that other independent agencies that
> contacts aren't as robust as they were at defense, but they are much
> more common and that for a member of Congress to write a letter, or to
> pick up the phone and call about a regulatory matter, isn't seen as
> *per se* as problematic. Whereas here, it is. Even in cases where it
> may not be *per se* problematic, it is perceived that way. That
> understandable care, that understandable reticence is really one of
> the things that has contributed to our isolation. Because people on
> the Hill feel like can't call us, or they shouldn't call us.\'[^600]

Congressmen wish to avoid communicating with the Commission for two
reasons. Firstly, their election lawyers usually advise against it
because a seemingly innocuous question might provoke an advisory opinion
that is damaging to their Party\'s interest. Any change in the law can
affect the outcome of electoral competition. Therefore, the \'amateur\'
is discouraged from \'meddling\' in the professional\'s territory. Alex
Vogel, general counsel at the NRSC, was asked about the educational
roundtables organised by the FEC.

> Author: \'The FEC have, if you look at the appendix to the PWC audit,
> very boring reading but they talk about the outreach, the
> roundtables.\'
>
> Alex Vogel: \'They are ignored by the regulated community.\'
>
> Author: \'Yes!\'
>
> Alex Vogel: \'That is because in a way the Party committees take some
> blame for that. We have basically said to our..to our regulated \...to
> our subsidiaries and our candidates, don't ever talk to the FEC, don't
> trust the FEC don't tell them anything, call us first. Don't ask for
> an advisory opinion. Leave the professional election law to the
> election lawyers. And you go run for office. So to some degree that\'s
> part of that.\'[^601]

Secondly, the regulated community have been unwilling to initiate
communications with the FEC is because of the real or perceived ethical
hazards involved. Commissioners and staff are bound by strict rules of
confidentiality surrounding all ongoing enforcement cases.[^602] Perhaps
the most potentially hazardous situations for Commissioners are the
social ones. Brooks Jackson described the case of the \'Blabbermouth
Commissioner\' in his book, *Broken Promise, Why the Federal* *Election
Commission Failed*. FEC Vice-Chairman Vernon Thompson, a Republican
appointee, divulged damaging information concerning a 1976 enforcement
case involving Jim Sasser (D-TN).[^603] The breach of confidentiality
took place whilst Thompson was socialising in Washington\'s University
Club. After the story was published in the press a few days prior to the
election, the FEC attempted to trace the source of the leak.
Commissioner Thompson subsequently admitted that he had discussed the
case with Melvin Laird, former Secretary of Defense shortly after voting
on the matter.[^604] Commissioner Mason alluded to the ethical problems
associated with these interpersonal meetings:

> Commissioner Mason: \'Once you are over here and people from the
> Commission historically have been somewhat reticent about going to
> Congress and explaining what we are doing and opening themselves up to
> communications from Congress. I've tried to do some of that sort of
> thing but in many cases I see problems that come up that way. When I
> was fairly new here, I went over to talk to the Senate AA's, the
> Chiefs of Staff of the Republican Senators to give them some
> observations about the Commission and after the talk, one of them came
> up and asked me, what could have been, what could have developed into
> a fairly sensitive enforcement related question. But I was able to
> handle it and give him appropriate guidance without causing any
> ethical problems for me, or for him. But it was a situation where the
> red flags started going up and so when you are in that sort of
> situation, the normal policy discussions, or normal administrative
> discussions, can very quickly lead to abnormal discussions.\'[^605]

As Congressmen and Commissioners are wary of initiating dialogue with
each other outside the bounds of traditional oversight, the appointment
process takes on even greater significance. Term limits help to ensure
that Commissioners do not have an opportunity to \'go native,\' adopting
an \'agency view\' but continue to act in a way that is broadly
representative of those who supported their appointment. Term-limited
Commissioners are likely to be more concerned about their impending
change in employment status and less concerned about enforcement of the
statute. Larry Noble suggested that if Commissioners were limited to one
six-year term, their primary objective whilst serving on the Commission
would be to find another job. Consequently, Commissioners would be
mindful about angering their allies in government or the private sector.
Therefore, term limits help to remind Commissioners of their loyalties.
The need to secure an appointment outside the FEC when their term has
expired helps to ensure that Commissioners do not become \'independent\'
but exactly the opposite.

The problem for Congress was how to install enough independence in the
Commission for its decisions to be seen as legitimate by the electorate
and respected by the regulated community, without setting up a body that
was so emboldened by that independence that it ignored the views or
concerns of Congress and that trampled over First Amendment
protections.[^606] Congress also wanted to avoid the Commission becoming
dominated by one political Party or ideological perspective. These fears
led to the creation of a body characterised by an even number of
Commissioners, a bipartisan lock on appointments and a mixed
majority-voting requirement. A quote taken from the 1976 landmark
*Buckley* v *Valeo* case set out the thinking behind the structure
created:

> \'Election campaigns are the central expression of this country\'s
> democratic ideal. It is therefore essential in this sensitive area
> that the system of administration and enforcement enacted into law
> does not provide room for partisan misuse or for administrative action
> which does not comport with the intent of the enabling statute. At the
> same time it is recognised that the authorities charged with
> administering and enforcing the law must have the independence
> required by the tripartite system of government set up by the
> Constitution. To mediate between these conflicting concerns, the bill
> provides that the Commission shall initiate investigations, bring
> judicial actions, and take other steps of comparable importance only
> upon the affirmative vote of four of its six members. The four-vote
> requirement serves to ensure that enforcement actions, as to which
> Congress has no continuing voice, will be the product of a mature and
> considered judgement.\'[^607]

**[Partisan Immobilism and the FEC Decision Making
Process]{.underline}**

There has been no shortage of commentators willing to criticise the
structure of the Commission, most of whom judge that it builds in the
inevitability of partisan deadlock. Fred Wertheimer, President of
Democracy 21, recently described the Commission as having \'a structure
that is designed by format for stalemate.\'[^608] Brooks Jackson in
*Broken Promise* described how an even number of Commissioners
effectively builds gridlock into the process.[^609] A press release
issued by Democracy 21 quotes an editorial from the *Washington Post*
that said, \'the bipartisan nature of the FEC also guarantees
paralysis.\'[^610] Peter Beinart, writing in *The New Republic* said
that, \'the FEC often deadlock along party lines.\'[^611] Eliza Carney,
writing in the *National Journal,* commented, \'the six-member panel,
split evenly between Republicans and Democrats, often deadlocks along
party lines.\'[^612] Bill McAllister and Benjamin Weiser opined in the
*Washington Post*, \'when the Commission gathers around its ninth-floor
conference table in the old Potomac Electric building on E Street NW,
the central issue is often whether the FEC will take action or deadlock
three to three along Democratic and Republican Party lines.\'[^613]

[**Allegations of Campaign Finance Violations Resulting in Partisan
Deadlock**]{.underline}

In 1986 the American Medical Association Political Action Committee
(AMPAC) allegedly spent \$259,000 in an attempt to defeat Representative
Pete Stark (D-CA). AMPAC opposed Stark because of his support for
Medicaid, the government medical cover provided for poor and low-income
families. Brooks Jackson described how Stark, who also chaired the
Congressional committee dealing with Medicaid, referred to AMA leaders
as \'troglodytes.\' In their attempt to elect Stark\'s opponent,
Republican David Williams, AMPAC appeared to co-ordinate their
expenditures with the candidate\'s own campaign, something which
qualified as a contribution and exceeded the \$5,000 PAC limit. The law
states: \'expenditures made by any person in co-operation, consultation,
or concert, with, or at the request or suggestion of, a candidate, his
authorized political committees, or their agents, shall be considered to
be a contribution to such candidate.\'[^614] In his report, the FEC
general counsel recommended that the allegations should be investigated.
However, the Commission deadlocked with three Democrats finding \'reason
to believe\' and three Republicans against. Partisan deadlock at the
\'reason to believe\' stage attracts particular criticism because it
prevents the establishment of the facts. Additionally, Republican
appointee Lee Ann Elliott had voted against the investigation whilst she
still received her \$18,831 annual pension from AMPAC.[^615] Whilst
AMPAC could not have legally revoked Commissioner Elliott\'s pension
rights, the financial relationship justified a recusal.

After a three-year investigation into the NRSC and their alleged
overspending in the 1988 campaign of former Senator Conrad Burns (R-MT),
the Commission deadlocked. Three Democrats voted to proceed, two
Republicans against and one Republican abstained.[^616]

By 1989 Kenneth Gross, Democratic Party election lawyer and former FEC
Associate General Counsel, commented, \'important issues are not being
resolved because of party-line splits.\'[^617] The Democracy 21 Report
(2002) supported the partisan deadlock thesis and described a number of
more recent cases.

In 1993, the DSCC alleged that the NRSC had exceeded the limit on
co-ordinated Party expenditures in the Georgia Senate runoff election.
It was likely that co-ordination had a significant effect on the outcome
of the election as the National Institute on Money in State Politics
found that the best-funded candidates won 83% of elections in
Georgia.[^618] The Commission voted along partisan lines, with three
Democrats finding reason to believe and three Republicans against. In
1996, the Commission found that the 1996 Dole for President Committee
had received illegal contributions from the RNC. Whilst the general
counsel recommended to proceed with enforcement action, the Commission
deadlocked along partisan lines.

Finally, the Haley Barbour case involved an investigation of the RNC and
their relationship with a non-profit corporation, the National Policy
Forum. The general counsel recommended that the Commission find
\'probable cause to believe\' that both organisations had received
illegal foreign donations and had used these donations to influence the
outcome of Federal elections.[^619] Again the Commission split along
Party lines with the three Democrats supporting the general counsel\'s
recommendation and the three Republicans voting against. However, whilst
the public is not made privy to the evidence in any enforcement case
placed before the Commission, the contrarian votes in Haley Barbour may
well have been justified. An investigation by the Senate Committee on
Governmental Affairs concluded that \'evidence obtained by the committee
demonstrated that the National Policy Forum did not engage in any
campaign-related activities in 1994 or 1996.\' \'Therefore it was not
subject to restrictions on foreign funding.\'[^620] One might argue that
this case involved unethical campaign funding practices but not illegal
ones.[^621]

These cases show that the traditional orthodoxy is that the agency
suffers from immobilism due to defensive partisanship. When partisan
deadlock does occur on the Commission, it is often highly significant,
as it tends to relate to important cases involving large sums of money:
high profile actors, unsettled areas of the law and partisan
issues.[^622] For example Trevor Potter commented:

> Trevor Potter: \'One of my colleagues who is no longer there on the
> Commission used to rise up in righteous anger when people used to talk
> about three/three ties. This is Lee Ann Elliot, \'I\'ve done my
> research and ninety-five point seven percent of all cases are resolved
> without any sort of tie vote.\' Correct! But important cases, if you
> looked at where the tie vote cases were, every single case was an
> important case. Every one of those was a crucial case, a very partisan
> case.\'[^623]

Bill Allison was also critical of the incestuous relationship
Commissioners had with the two major Parties. He commented:

> Bill Allison: \'But when you are all under the same roof and the
> Commission itself is political, a certain number from each party, the
> President chooses the swing vote. These are people who know the
> Parties, are familiar with the Parties, their best friends are in the
> Parties and they are overseeing the whole bowl of wax.\'[^624]

Whilst partisan deadlock has undermined the efficacy of the Statute in a
number of important cases, journalists and the reform community present
the decision-making process in caricature. This discussion will
illustrate the infrequency of partisan deadlock, will argue that most
cases generate consensus and that legal interpretation, evidentiary and
philosophical outlook all effect the outcome of Commissioner
deliberations.

Firstly, FEC staffers carried out an examination of the enforcement
decisions that resulted in a three/three split, or deadlocked
Commissioner vote tally. The sample frame included 4,725 votes cast from
1993-1999. They found that only 2.56% of Commissioner vote tallies
resulted in a three/three split and that not all of those were along
partisan lines.[^625]

When asked to confirm this rarity, he commented:

> Jan Baran: \'I agree with you that there are fairly few instances
> where the Commission actually deadlocks, three-to-three and even in
> those-three-to-three deadlocks, there will be occasions when the
> composition of the two sides is not necessarily partisan one way or
> the other.\'[^626]

Commissioners are also aware that recurrent partisan deadlock will not
only attract criticism in the press and the reform community but
complainants may also sue the agency. For example, if the Commission
dismisses a case because of \'impermissible interpretation of the
statute\' or because of \'arbitrary and capricious\' decision-making, a
court may find that the agency has acted \'contrary to law.\'[^627] One
case where this occurred involved the NRSC, which was alleged to have
evaded limits on Party aid to particular candidates through
\'bundling.\' The Committee had allegedly solicited cheques without an
identified payee, paid them into their bank account and then
periodically disbursed \$545,249 in funds to their preferred candidates.
This mechanism was designed to circumvent the contribution limits
enshrined in the FECA and upheld in *Buckley*. The NRSC claimed to have
been a passive agent, merely passing on \'earmarked\' contributions.
When the Commission voted on the matter, it rejected the general
counsel\'s recommendation to proceed and split along Party lines.
However, on 24 January 1990, a Federal Judge ruled that the Commission
had been \'arbitrary and capricious\' in not pursuing the NRSC and
therefore had acted \'contrary to law.\'[^628] Yet one should not
overestimate the likely success of this strategy as legal decisions may
be politicised and the courts have generally adopted a deferential
attitude towards the FEC because they possess exclusive civil
jurisdiction.[^629] The FEC has also challenged the legal \'standing\'
of those attempting to enforce the law in this way.[^630]

Secondly, the majority of enforcement decisions do not involve a formal
meeting of the Commissioners. Enough consensus prevails for the
Commission to exercise its enforcement responsibilities by \'voting in
circulation.\' Larry Noble explained:

> Larry Noble: \'A matter is circulated around the Commissioners, where
> they vote on paper, it doesn\'t go to the Commission, it doesn\'t go
> to the table, as long as there\'s agreement on it. Now a Commissioner
> can object, and it will have to be put on the agenda for discussion,
> or they can object for the record, meaning they don\'t want to discuss
> it, they know that there are four or five votes to go forward. The
> more controversial things, or sometimes a Commissioner will raise a
> non-controversial objection on a minor point and it will go to the
> table. But the majority of things get done in circulation.\'[^631]

An agency ridden by partisan deadlock is unlikely to be able to function
in the way Larry Noble described. Former Republican appointee, Max
Friedersdorf commented:

> \'Before I got here, I imagined there would be a lot of deadlocks, but
> most decisions are, though, unanimous, 6-0, because the cases are
> clear-cut. If we have differences, it\'s usually over interpretation
> of the law, not due to partisanship.\'[^632]

However, this consensus is also criticised by the reform community.
Groups like Democracy 21 and the Centre for Public Integrity (CPI) have
argued that where enforcement might have a significant impact on the
regulated community, Commissioners affiliated to both Parties collude to
defuse complaints. For example Marianne Holt from the CPI referred to
this practice as \'back-room trading.\'[^633] Similarly Alex Vogel
general counsel at the NRSC commented that:

> Alex Vogel: \'Big violations that involve real issues of how large
> institutions in the political environment operate, are the ones that
> inherently run up against the inability to get four votes, or that
> both sides are doing it and it seems to be working rather well for
> both sides, so no one wants to touch it.\'[^634]

Allegations surrounding the 1996 presidential campaigns of Bob Dole and
Bill Clinton were often described as examples of this. Yet this case
will show that the \'back-room trading\' thesis has its weaknesses and
that a third factor, legal controversy, may influence the
decision-making process far more.

Both candidates had agreed to abide by spending limits in exchange for
public funding. It was alleged that in order to evade these spending
limits the rules on soft money were broken by both candidates. It was
permissible for Parties to raise and spend soft money, which is
unregulated at Federal level, on \'get out the vote drives,\'
Party-building activities and \'issue discussion,\' something upheld by
the courts and protected under the First Amendment. Individuals, groups,
labor unions and corporations have been able to contribute unlimited
amounts of soft money which has been used to pay for \'issue
discussion\' in the media.[^635] However, Mablin and Gais noted how
these campaigns exploited the margins between \'issue advocacy\' and
\'election advocacy.\'[^636] The practice of using soft money in this
way was legal, as long as the message did not expressly advocate the
election or defeat of a clearly identified candidate. The criticism has
been that \'issue advocacy\' and \'election advocacy\' are synonymous.
This method of campaigning was criticised by Eliza Newlin Carney who
commented in the *National Journal*:

> \'In the 1995-96 election cycle both Parties raised and spent
> unprecedented sums of \'soft\' or unregulated, money on
> multi-million-dollar advertising campaigns that masqueraded as
> legislative advocacy but were widely perceived as blatant
> electioneering. The explosion in the use of soft money rendered
> existing limits on campaign contributions all but meaningless.\'[^637]

It was further alleged that the election messages paid for with soft
money were also coordinated with the candidates. Coordinated
expenditures were considered an \'in-kind contribution,\' making them
subject to FECA contribution limits, and the prohibitions relating to
corporations and labor unions.[^638]

The FEC audits of both presidential campaigns concluded that they had
broken the law and the \'issue advertisements\' should have been counted
against their expenditure limits. Therefore, the professional staffs
recommended that the Clinton campaign repay \$7m in public funds and the
Dole campaign repay \$17.7m. However, the Commission unanimously
rejected the repayment recommendation, voting 6-0 against.[^639]

Fred Wertheimer criticised the soft money loophole and suggested that
Commissioners voted against enforcement because of their role as
defenders of Party:

> Fred Wertheimer: \'The Commission\'s most egregious act has been to
> play the principal role in opening the soft money loophole, which is a
> loophole that ate the law, and then refusing to address the problem.
> We spent five years in the Commission in the 1980s with a proposed
> rule- making to stop the problem. Then they refused to enforce the law
> when people were blatantly breaking the law.\'
>
> Author: \'So this rule-making, that was the late 70s wasn't it? \'78
> was it?\'
>
> Fred Wertheimer: \'Well, their initial rule-making that opened the
> loophole was 78. I wrote a letter to them in 1984 asking them to adopt
> a regulation to stop this problem. The whole soft money problem is
> simply a cheating system. It was created at a national level simply to
> cheat and evade the campaign finance laws. We proposed a rule-making
> that was at the Commission for five years. We were in court twice, and
> at the end of the process, the Commission said basically they saw no
> evidence that anyone was doing anything here. The only thing they did
> do was adopt a disclosure, as part of the regulation request, which is
> the only reason you have disclosure of these contributions. And since
> then we've been working to get this problem fixed and constantly run
> into the roadblock of the Commission. In 1996, I served as a counsel
> for Common Cause in writing to the Justice Department for a special
> prosecutor to investigate Clinton and Dole\'s misuse of soft money in
> their campaigns. I was involved in the legislative efforts that
> created the special prosecutor system. But the problem was that the
> FEC simply wasn't enforcing the law. The long and short of it was that
> it was very controversial, there were a number of people in the
> Justice Department who wanted to go forward, but in the end, Reno
> killed it. But it went back to the auditing staff who found that Dole
> and Clinton had broken the law, but the Commission overruled them. The
> enforcement staff then found that they had broken the law, and the
> Commission overruled them. And then just recently, in 2000, we ran
> into the same problem at the Congressional level, so we filed
> complaints with the Commission against Hillary Clinton, John Ashcroft,
> and a number of others, and the campaign committees. We just got the
> results back, and again the staff has ruled for us, and again the
> Commission has overruled them again. So basically, they seem to have
> as their role in life to protect the regulated community, rather than
> to enforce the law.\'[^640]

Fred Wertheimer elaborated on how soft money was used to circumvent
contribution limits in Hillary Clinton\'s New York race for election to
the U.S. Senate.

> Author: \'Soft money is regulated at state level, is that right?\'
>
> Fred Wertheimer: \'Well, yes and no.\'
>
> Author: \'This is what the Republicans are telling me.\'
>
> Fred Wertheimer: \'In theory it is supposed to be raised and spent
> under state law, but most of the state laws don't limit this money.
> It's not regulated in the sense that it \...and as a practical matter,
> there's no enforcement of soft money and its potential use in Federal
> elections. No. The soft money system from its beginning, was a
> cheating system, the word, it\'s the worst possible word, soft money
> sounds very innocent, very relaxing, it was a cheating system. It was
> created to get around every limit in the Federal law. And to this day
> it\'s a cheating system. Now this latest case, Senator Clinton goes
> out, creates a joint committee, with the Senate Democratic campaign
> committee, goes in New York and personally I solicit money from you.
> She goes to an event and she asks you for a thousand dollars\' that\'s
> all you can give me. And also could you give me a hundred thousand
> dollars? I can't use this for my campaign, so you give her the money
> that the law is supposed to prevent you from doing. She takes that
> money, she sends it through the process to the state party, the state
> party then co-ordinates with the Clinton campaign to design the ads,
> and the money is spent. The claim is there's nothing wrong with that,
> at that point we have no laws.\'
>
> Author: \'Is this related to express advocacy?\'
>
> Fred Wertheimer: \'Well the claim is, but no, not in reality. The
> money goes from the national party, to the state party and is spent by
> the state party. No court in this country, none, has ever said that an
> expenditure by a party or a candidate, requires express advocacy,
> none. Now the argument has been made that it does. Those findings have
> only been made with regard to outside groups. Third party groups. Now
> the idea that a candidate, I run an ad two weeks before an election,
> beat the hell out of my opponent and don't say vote for me and vote
> against the opponent is not a campaign ad, is ludicrous, beyond
> belief. Hillary Clinton, these people are controlling the ads. It\'s
> not like the party is controlling the ads and Parties are in the
> business of electing people. So you're telling me that a party is
> running an ad to\...before an election, that\'s not a campaign ad,
> it\'s issue discussion because it doesn't say vote for, so.\'
>
> Author: \'Phoney issue ads.\'

Whilst there has been criticism of the Commission\'s record of
regulating soft money, the reason for voting against enforcement may not
be due to the bipartisan collusion often suggested. For example,
Commissioners are commonly faced with a lack of clarity surrounding the
law, or they may believe that the regulations allow for a particular
activity. For example, Roberto Suro, staff writer at the *Washington
Post*, explained why the Commission failed to support enforcement
against the Dole and Clinton committees:

> \'Commissioners argued that there was no obvious standard to determine
> when \'issue advertisements\' should be counted against spending
> limits for individual candidates and when they counted as Party
> spending which is not subject to strict regulation by the
> Commission.\'[^641]

The FEC Budget Request (2000) also asserted how increasing legal
complexity had undermined the enforcement process:

> \'The Commission grapples with such complex legal matters as
> determining when improper coordination between a candidate and a labor
> union or corporation occurs, analyzing whether soft money is being
> used to fund contributions to Federal candidates, defining what type
> of entity qualifies as a political committee and determining when a
> person qualifies as a member of a membership association.\'[^642]

Furthermore the allegations made by Fred Wertheimer concerning the
campaigns of Hillary Clinton (D-NY), John Ashcroft *et al*, relate to
joint fundraising committees. Although these entities were used to raise
hard and soft dollars, Alex Vogel was of the opinion that no wrongdoing
had occurred because the regulations specifically allowed for the
establishment of these entities:

> Alex Vogel: \'We've just had in the last few days, I don't know if you
> saw this, but the Commission ended a number of MURs related to joint
> fund-raising committees. Hillary Clinton, Giuliani, John Ashcroft,
> have all been involved in joint fundraiser committees.\'
>
> Author: \'Is this to do with coordination?\'
>
> Alex Vogel: \'That was the argument. There's a campaign and there's a
> party committee and they get together and form a third entity,
> together, a joint fundraiser committee, which raises hard and soft
> money. The soft money goes to the party committee, and the hard money
> goes to the candidate. Well Democracy 21, Wertheimer, and all these
> folks, had filed a complaint, that this was unlawful, that.\'
>
> Author: \'Were they saying that they were funnelling the soft money
> back through?\'
>
> Alex Vogel: \'Exactly. The problem is that the regs specifically
> provide for joint fundraising committees, and there was no evidence
> that anyone was doing that. So you have the general counsel\'s office
> finding reason to believe on everything, with a 55-page general
> counsel\'s report, saying throw the book at everybody, and the
> Commission saying absolutely not. So not only do you have these two
> forces in the Commission, Democrats versus Republicans, it was almost
> like the general counsel\'s office was an island to itself.\'
>
> Author: \'I spoke to Scott Thomas, and he said well\...we rung our
> hands and then we didn't do anything.\'
>
> Alex Vogel: \'Scott\'s approach was well, let\'s find a violation but
> not fine anybody because what they were doing was probably not against
> our interpretations at the time. Well then, they couldn't have done
> anything wrong.\'[^643]

Whilst the candidates in 1996 and 2000 benefited from employing soft
money to purchase \'issue advertisements\' of questionable legal status,
Commissioners have a duty to interpret the law as they understand it.
This may result in deadlock, partisan or otherwise, or it may generate
consensus. The agency tends to attract criticism from the reform
community when the Commission fails to act, usually citing partisanship
or bipartisan collusion, or it attracts criticism from First Amendment
advocates when it does act because it is accused of encroaching on
constitutionally protected free speech. Particular controversy has
surrounded Matters under Review (MURs) and court cases involving
\'express advocacy\' and \'coordination,\' both of which are discussed
below.

**[Case Law: Express Advocacy]{.underline}**

The *Buckley* v *Valeo* 424 U.S. 1 (1976) decision established the
so-called \'magic words test\' in defining \'express advocacy.\' A
communication was only defined as \'express advocacy\' if it included
words like, vote for, elect, support, cast your ballot for, Smith for
Congress, vote against, defeat or reject a clearly identified
candidate.[^644] This was a narrow interpretation, though a clear
definition. The Supreme Court in *FEC v Massachusetts Citizens for Life*
479 U.S. (1986) revised the express advocacy standard ruling that the
communication could be less direct than the examples established in
*Buckley*. The court ruled that \'the fact that the message is
marginally less direct than \'vote for Smith\' does not change its
essential nature.\'[^645] This was an important case as it adopted a
broader \'common sense\' definition of what constituted express
advocacy. In *FEC v Furgatch* 807 F. 2d 857 (1987) a lower court ruled
that \'the list in Buckley does not exhaust the capacity of the English
language to expressly advocate the election or defeat of a candidate.\'
The *Furgatch* case established three considerations when defining
express advocacy: (1) the speech is \'unmistakable and unambiguous,
suggestive of only one possible meaning\'; (2) the speech must present a
\'clear plea for action\'; and (3) it must be clear what action is being
advocated.\' However, other Federal appeals courts have reverted to the
\'magic words\' test established in *Buckley*. Such cases have included
*Faucher v FEC* 928 f. 2D 468 (1991), *FEC v Central Long Island Tax
Reform Immediately Committee* (CLITRIM) 616 F. 2d 45 (1980) and *FEC v
Christian Action Network* 894 F. 946 (W.D. Va. 1995) (3d Dir. Aug 2,
1996). Thomas and Bowman have argued that the narrow \'magic words\'
standard would \'eviscerate\' the statute as corporations, foreign
nationals and labor unions could break contribution limits by spending
unlimited amounts of soft money dedicated to unambiguous electioneering
under the guise of \'issue advertisements.\'[^646] Therefore in October
1995 the Commission promulgated new regulations that incorporated the
*Furgatch* ruling. The new regulations were especially unpopular with
First Amendment Republicans and established a more expansive \'common
sense\' definition. Part (a) was more in line with *Buckley* and
employed key words like \'vote for President,\' \'re-elect your
Congressman,\' \'support the Democratic nominee,\' \'Smith for
Congress,\' etc. Yet part (b) set out that: (1) \'the electoral portion
of the communication is unmistakable, unambiguous, and suggestive of
only one meaning; and (2) reasonable minds could not differ as to
whether it encourages actions to elect or defeat one or more clearly
identified candidate(s) or encourages some other kind of action.\'[^647]
However, the Commission\'s regulations were successfully challenged in
*Maine Right to Life* *Committee v FEC* 914 F. (d.Me.1996). The
regulations were deemed to be unconstitutional and such \'issue
advocacy\' could only be regulated if it was clearly \'coordinated\' or
authorized by the candidate. The broader \'reasonable minds\' part of
the regulations were also ruled contrary to the First Amendment in
*Virginia Society* *for Human Life v FEC* (4^th^ Cir. 2001).[^648]

First Amendment advocates refer to the *MRLC Inc v FEC* (1996) and *VSHL
v FEC* (2001*)* cases and argue that the Commission should adopt the
narrower \'magic words\' definition of express advocacy. When asked
about express advocacy, Jan Baran commented:

> Jan Baran: \'Well, you have two Supreme Court decisions, and several
> courts of appeals, courts of appeals who have interpreted the Supreme
> Court\'s decisions as saying express advocacy means X. The Federal
> Election Commission passes a regulation that says we define express
> advocacy as X, and also Y. And the courts, three now, have declared Y
> unconstitutional.\'[^649]

However as Commissioners have been unable to reach agreement on the
appropriate standard to apply, a compromise solution was found.[^650] On
September 22 1999 the Commission ruled 6-0 not to enforce part \'b\' of
the regulations in either the 1st or 4th Districts as the Commission had
lost cases in the geographical areas administered by those courts.[^651]
Republican Party appointees Smith, Mason and Wold have adopted a narrow
interpretation, relying on the \'magic words test\' first established in
*Buckley*,[^652] whilst Commissioners McDonald and Thomas have adhered
to the broader \'reasonable minds\' standard established in *Furgatch*.
Commissioner Thomas explained the problems inherent in the narrow
\'magic words\' approach to express advocacy:

> Author: \'The FEC has also been criticised for going after disclosure
> violations at the expense of going after substantive violations, how
> fair is this criticism?\'
>
> Commissioner Thomas: \'Well, there's sort of a parallel problem that
> results if you start saying that certain kinds of paid advertising are
> not election related. If you say that an ad put out by a group that
> says Scott Thomas who happens to be running for Senate is a wife
> beater and doesn't pay his taxes and has missed half of his votes in
> Congress. Think about that in November. That kind of an ad. I suppose
> if the FEC and no-one else wants to think that that is an
> election-related communication means that not only can corporate money
> be used to pay for it, you can get around the prohibition on corporate
> expenditures, but you will likewise be saying that that is not an
> election- related communication for disclosure purposes. You won't
> require the group that undertake that activity to register as a
> political committee to disclose all of the money that is raised and
> spent to do that. So it kind of goes hand in hand. You start seeing
> the government enforcement body backing off of calling certain
> activity campaign-related, for the purposes of limits and
> prohibitions, you'll also find that there is suddenly a backing off of
> disclosure. And that is really what I think has happened.\'[^653]

Commissioner Thomas also alluded to his difference of opinion with
Commissioner Smith on the definition of express advocacy:

> Author: \'In your opinion, the appointment of Commissioners who oppose
> the constitutionality of the statute they\'re enforcing, how do you
> feel about this?\'
>
> Commissioner Thomas: \'I would have to say it makes me a little
> uneasy, and I think as a general proposition, you have to be very
> careful that if you are going to be putting people at an agency that
> they will enforce the laws that are on the books. Your question, I
> assume, alludes to Commissioner Smith. His many other writings
> indicate his scepticism of the constitutionality of at least some of
> the provisions of the statute. He was grilled mercilessly about
> whether he would nonetheless enforce the law; of course he said, yes,
> of course I will enforce the law that\'s on the books and my sense is
> that yes, he has been willing to do that. It has led him in some cases
> to, I think, say that we need to have a very clear 'express advocacy'
> test in order to apply certain provisions of the law and he goes much
> quicker to that approach than I would. I'm more of a if John Hue
> citizen on the street would clearly understand that this particular
> communication was clearly designed to influence the election, and had
> no other plausible purpose, we ought to treat it as an
> election-related communication.\'
>
> Author: \'A common-sense approach.\'
>
> Commissioner Thomas: \'A common-sense approach.\'[^654]

Commissioner Sandstrom has been less supportive of the \'reasonable
minds\' express advocacy standard and might be described as the
contrarian or less predictable Democrat on the Commission.[^655].

**[Case Law: Coordination]{.underline}**

Similar legal problems have also affected what constitutes a
\'coordinated expenditure\' and what constitutes an \'independent
expenditure.\' Whilst *Buckley* upheld contribution limits on
\'coordinated expenditures,\' it ruled that \'independent expenditures\'
could not be limited and were unconstitutional. Mindful that those
engaged in political activity might circumvent contribution limits by
passing off a coordinated expenditure as an independent one, the Buckley
court defined contribution as follows:

> \'A contribution included not only contributions made directly or
> indirectly to a candidate, political party, or campaign committee..but
> also all expenditures placed in cooperation with or with the consent
> of a candidate, his agents, or an authorized committee of the
> candidate.\'[^656]

The statute also established that:

> \'An expenditure made in \'cooperation, consultation or concert, with,
> or at the request or suggestion of, a candidate, his authorized
> political committees, or their agents, shall be considered to be a
> contribution to such candidate and therefore subject to the
> contribution limitations.[^657]

The statute defined an independent expenditure as follows:

> \'An expenditure by any person expressly advocating the election or
> defeat of a clearly identified candidate which is made without
> cooperation or consultation with any candidate, or any authorized
> committee or agent of such candidate, and which is not made in concert
> with, or at the request or suggestion of, any candidate, or an
> authorized committee or agent of such candidate.\'[^658]

This broad standard was further clarified in Commission regulations,
which asserted that an \'expenditure\' would not be considered
\'independent\' if there was:

> \'Any arrangement, cooperation, or direction by the candidate or his
> or her agent prior to the publication, distribution, display or
> broadcast of the communication.\'[^659]

Therefore the case law established in Buckley, the FECA statute law and
the Commission\'s Federal Regulations all established a broad definition
of what constituted coordination. The application of this standard was
designed to protect the efficacy of contribution limits and in doing so,
protect the integrity of the electoral system. However, in keeping with
the judicial activism that challenged the \'reasonable minds\'
definition of express advocacy, the courts have developed a
\'coordination\' standard that is much narrower than that previously
established. The narrow interpretation enables the regulated community
to comply with the letter of the law but not the spirit or statutory
intent. For example, in *FEC v Public Citizen* (1999) the court opined
that discussion between spender and candidate did not meet the
consultation or coordination standard and the Commission\'s regulations
were ruled invalid. The Commission also lost a coordination case against
the Christian Coalition in 1998. The Commission alleged that the
Christian Coalition \'had repeatedly cooperated and consulted with
Republican candidates for Federal office, their campaigns and the
NRSC.\'[^660] The Commission asserted that these activities had amounted
to an in kind corporate campaign contribution, which was contrary to
section 441b of the FECA. The Commission also alleged that the Coalition
had expressly advocated the election or defeat of clearly identified
candidates, which was something that breached the prohibition on
independent corporate campaign expenditures. The court ruled against the
Commission on 5 of the 6 allegations involving coordination and
established its own narrower standard.[^661] Washington law firm, Wiley,
Rein and Fielding incorporated this new standard into their Internet
Homepage advice for candidates which read:

\'A \'coordinated expenditure\' is an expenditure for a general public
political communication featuring a clearly identified candidate that
is:

1\. Paid for by any person other than a candidate, a candidate\'s
authorized committee, or a party committee, and is created, produced, or
distributed at the request or suggestion of a candidate, a candidate\'s
authorized committee, or a party committee.

2\. After a candidate has exercised control or decision-making authority
over the content, timing, location, mode, intended audience, volume of
distribution, or frequency of placement of that communication or;

3\. After substantial discussion or negotiation between the creator,
producer or distributor of the communication, or the person paying for
the communication, and a candidate, or a candidate\'s authorized
committee, or a party committee regarding the content, timing, location,
mode, intended audience, volume of distribution or frequency of
placement of that communication, the result of which is collaboration of
agreement.\'[^662]

Whilst this narrow standard might enable or even encourage the regulated
community to \'push the envelope,\' circumventing the original
Congressional intent, the court expected its decision to be appealed.
The court opined:

> \'This court is of the opinion that this order in relation to counts
> I, II, and III involves controlling questions of law as to which there
> is substantial ground for difference of opinion and that an immediate
> appeal from the order may materially advance the ultimate termination
> of the litigation.\'[^663]

However Commissioner Sandstrom joined with Republican affiliates
Elliott, Mason and Wold in voting against the appeal.[^664] The *FEC v
Christian Coalition* case has contributed to the lack of legal clarity
surrounding the definition of coordination. For example, whilst the
regulated community may be guided by the narrow standard set out by the
district court, that ruling does not amount to binding legal precedent
on other Federal Courts. Additionally, Thomas and Bowman have asserted
that individual Commissioners have applied the coordination standard in
an inconsistent manner, often in similar cases.[^665] Until the U.S.
Supreme Court resolves this and other definitional issues, enforcement
decisions may continue to appear arbitrary and confusing to the
regulated community.

Furthermore, the Commission has been hesitant to authorise enforcement
in the area of coordination because communication between individuals
and groups is endemic in electoral politics. For example, Commissioner
Mason commented:

> Commissioner Mason: \'Why Commissioners vote in the way they do is
> always a mixed question of fact and law, with frequently policy
> considerations thrown in. In other words we sometimes view decisions
> as policy tools, or as influenced by policy purposes. And so sometimes
> we'll find quite a bit of static back and forth between policy
> decisions and preferences, particularly on unsettled areas such as
> co-ordination. If we have an unsettled policy area, we are often quite
> reluctant to take definite enforcement action. In part because of
> notice concerns, and in part because of whatever differences have
> caused the lack of policy clarity also going to bedevil us in trying
> to come to an agreement about what the appropriate standards should be
> in the enforcement arena.\'
>
> Commissioner Mason: \'The vagueness that Jan was talking about is also
> present many times and the issue that has been bedevilling the
> Commission the past dozen years or so is issue co-ordination. The
> problem here, not only in my mind is that OK, how do you draw up a
> definition that says defined a certain amount of contact having
> crossed a line, like the \$1000 limit, a fairly arbitrary line, but
> one you have to draw somewhere. The bigger form is that the contact
> between candidates and Parties, and candidates and interest groups, is
> the norm, is the general rule. So to use two American companies,
> K-Mart, and Wall-Mart, the retailers are talking to each other is an
> unusual situation, is suspect per se. So in anti-trust law you don't
> need to establish a whole lot of contact to establish a violation.
> Anytime there is a collusion of some sort between two ostensible
> competitors, there's something odd going on. With candidates and
> political Parties and outside interest groups, one of the earliest
> definitions I was given of politics is that it was a conspiracy to
> seize power\...through legal means of course. The campaigns are all
> about building coalitions. Candidates, when they run for office, try
> to attract not just individual voters but groups, and they appeal
> through their labor unions, parent associations in schools, and
> specific groups. And so the sorts of communications that could end up
> deemed as co-ordination are going on all the time, and in fact are the
> normal rule of politics, in fact they are the currency of
> politics.\'[^666]

Alex Vogel also concluded that, because communication between Parties,
candidates and other actors was inherent in the political process, the
FEC tended to vacillate over what \'coordination\' standard to apply.

> Author: \'A broad general question. What has been your general
> experience of FEC enforcement?\'
>
> Alex Vogel: \'Inconsistent and spotty on all sides. They have let some
> large issues that I think should have been enforced get away.\'
>
> Author: \'Examples at all?\'
>
> Alex Vogel: \'The Democrats and the Unions coordination. In some
> cases, the unions sat at the table, I mean physically sat in the room,
> while the DNC worked out their political plan and said \'well this is
> where we are going to spend our money and what do you think?\' And
> they said \'that\'s not unlawful coordination.\' And so I think they
> have let some really big ones get away and I think they have focussed
> on ..\'
>
> Author: \'I think this idea of coordination because I've interviewed
> three or four Commissioners and I think what they are actually saying
> is that there is an institutional culture in the regulated community,
> where they do speak to each other, this is inherent.\'
>
> Alex Vogel: \'This is what political Parties do.\'
>
> Author: \'And to try and regulate against that, ..is a waste of .\'
>
> Alex Vogel: \'And by the same token, they won't kind of cut us loose
> and say \'yes, this is what political Parties and organisations do,
> they talk to each other, they talk to their candidates. You shouldn't
> try and get them not to talk to each other. So...there was a huge
> enforcement case against the Coalition and a number of business groups
> that went on forever. In that position, people spent millions of
> dollars on legal bills, defending themselves against coordination and
> at the same time most of the Commissioners recognised this is what we
> do. They can't seem to decide one way or the other.\'[^667]

Unlike other areas of law enforcement, what constitutes a violation
under the FECA and what constitutes permitted behaviour appears to be a
matter of opinion at the FEC and in the courts. Controversy as well as
legal uncertainty feeds into the decision-making process. Lisa Gordon,
writing in the *Minnesota Law Review* opined, \'taken together,
political and constitutional demands have transformed campaign finance
jurisprudence into a quagmire of rules and exceptions.\'[^668]
Consequently, the Commission\'s failure to act is not always motivated
by partisan self-interest or mutually beneficial \'back-room trading\'.
This discussion will continue to show that Commissioner decision-making
is a far more complex process than many journalists appreciate.

The fourth factor that influences how Commissioners cast their vote in
enforcement cases is evidentiary, or the facts of the case. After the
General Counsel has submitted his report, which contains a factual and
legal analysis, the Commissioners consider it. When asked how might one
try and understand the Commission decision-making process, and why
Commissioners vote in the way they do, Commissioner Scott Thomas
replied:

> Commissioner Thomas: \'It\'s a process that most might describe as not
> pretty. But the basic process is set up so that most Commission
> decisions are at least based on some reasoned legal analysis that
> comes out of our Office of the General Counsel. They prepare a legal
> General Counsel\'s report that lays out the rationale, the legal
> arguments and the actual evidence. That sits before us to help the
> Commissioners make a decision.\'[^669]

Lawrence Noble spoke about preparing General Counsel reports and how
important they were in affecting how individual Commissioners voted.

> Larry Noble: \'There were cases where I felt that the record made by
> the Office of the General Counsel, put certain Commissioners who did
> not want to go forward in an impossible position where they had to
> vote to go forward. They just could not ignore the evidence, and those
> were the satisfying times.\'[^670]

However, when Jan Baran was interviewed about the deliberative process,
he was critical about the way evidentiary was presented before the
Commission.

> Author: \'This is the 64,000-dollar question. How might one best
> understand the Commission decision-making process and why do
> Commissioners vote in the ways they do?\'
>
> Jan Baran: \'Well, you know, 80 to 90 % of the time the voting isn't
> particularly difficult. Someone didn't file a report, someone didn't
> file a report. If someone accepted excessive contributions, it\'s a
> mathematically, it\'s a mathematical demonstration of evidence that
> they went over a thousand dollars. And that is the vast majority of
> the cases.\'
>
> Author: \'And then they talk about voting in circulation, don't
> they?\'
>
> Jan Baran: \'And then they circulate it. And then things are easy.
> It\'s only when they get into these more ambiguous legal areas, and
> they are areas that require both conclusions of law, as well as
> supporting evidence that the get all bollixed up. And there the
> decision-making usually revolves around, again we don't know because
> we're not there but\...we're not privy to the discussion, we don't
> know what the discussion\'s like, the transcripts of these closed
> meetings are not publicly available, but I suspect that the discussion
> will reflect on many of these contentious issues reflects a difference
> of opinion between the Commissioners about what the law actually says.
> What is express advocacy, what is co-ordination, things of that sort.
> Then I suspect, in a minority of times, the dispute may be over
> whether or not there are actually enough facts to support a
> conclusion.\'
>
> Author: \'Evidential.\'
>
> Jan Baran: \'Evidentiary. Which always mystified me because again
> there is no presentation of the evidence to the Commissioners, except
> by the General Counsel\'s office. There is no hearing. The
> Commissioners are not present at the depositions. There is no record
> that Commissioners, any Commissioners\' actually read the transcripts
> of the testimony that their staff may take and how they accumulate the
> facts has always been a mystery to me.\'[^671]

Although it may be impractical for Commissioners to examine all the
facts first hand, Baran makes a valid argument for greater rigour to be
injected into the presentation of evidentiary.

Trevor Potter explained how evidentiary might be reconciled with
partisanship.

> Trevor Potter: 'I think it is fair to say that Commissioners are
> appointed as Republicans or Democrats, and view their roles at least
> to some extent as protectors of their Party interest. That doesn\'t
> mean that they will always vote for their Party, or never find that
> their Party was wrong. But you can tell when a case comes up, by which
> Commissioners are asking pointed questions, as to which is one Party
> or the other. It doesn\'t mean that you won\'t find a vote, but it
> does mean that perhaps properly the General Counsel is going to be
> held by the Democratic, or the Republican Commissioners to really
> provide the proof, before they will go forward. Because Commissioners
> appointed by their Party want to be able to justify the Commission\'s
> actions against the Party. They want to make certain the Commission\'s
> on strong grounds. They may well have to explain it in \'cocktail
> Parties,\' or in meetings, so they would like to make sure the
> Commission has a strong case, if the Commission doesn\'t, they are
> going to be disinclined to go forward.'[^672]

Finally, the philosophical and ideological attitudes Commissioners have
towards regulating constitutionally protected free speech also feeds
into the deliberative process.[^673] This has often been characterised
as Democrats who wish to regulate, and Republicans who do not. Yet this
fails to articulate the philosophical pluralism that can exist on the
Commission. Donald McGahn commented:

> Donald McGahn: \'Whereas you can get a good government Democrat and
> good government Republican. You can get a First Amendment Democrat, a
> First Amendment Republican. You know, it\'s not necessarily
> partisanship.\'[^674]

Commissioner Thomas illustrated this point by referring to former
Commissioner Staebler, a Democratic Party appointee who joined with
Republicans to open up an opportunity to solicit contributions from
corporate employees.[^675] He also described how Commissioner Frank
Reiche, a Republican appointee from 1979-1985, had developed a
reputation for voting in an expansive manner. Trevor Potter was also
more inclined to regulate politics than many of his Republican
colleagues agreed with.[^676] At the Heritage Foundation, Commissioner
Mason \'accused\' him of having an expansive view of regulatory power,
something Potter denied.[^677] Commissioner Bradley Smith, appointed in
February 2000, is the most conservative member on the Commission and has
written widely on his constitutional and philosophical opposition to the
statute he is charged with enforcing.[^678]

> Commissioner Thomas: \'We have a fair philosophical divide right now
> at this agency. Some Commissioners who are, say, less inclined to like
> this law in the first place. They\'re more inclined to want to say
> that these kinds of laws, restricting contributions, and reporting
> requirements, are onerous and that they tread on First Amendment.
> There are other Commissioners who take the position that the laws are
> in fact very important and, in a sense, they foster speech and
> associational interests for your average citizen because you put some
> restraints on those persons and organisations who have huge amounts of
> money at their disposal.\'[^679]

Commissioner Thomas then described how this divide could sometimes make
the resolution of enforcement cases more difficult, especially when they
involved large sums, or ingenious ways of circumventing the law.[^680]
Commissioner Mason agreed with Commissioner Thomas, asserting that where
unsettled policy areas existed, the philosophical divide fed into the
enforcement process and made the resolution of cases difficult.[^681]
Trevor Potter commented on his experiences at the Commission and how he
became frustrated with weak enforcement.[^682]

> Trevor Potter: \'I think there have been Commissioners and remain
> Commissioners who are not convinced that campaign finance laws are a
> good idea.\'
>
> Author: \'Mentioning no names!\'
>
> Trevor Potter: \'In the past and presently have publicly said that
> these laws place a great burden on people and are contrary to the
> tradition of the First Amendment. Brad Smith is much more open about
> it now, but in the 80s and 90s there were Commissioners who felt just
> as strongly that the laws stifled political activity and they opposed
> that stifling. So the result is that you have a Commission that
> requires a two-third majority to take any action. It\'s referred to as
> a majority but if you think of it, it\'s a two-thirds majority to do
> anything and I think that remains a problem. There are lots of times
> the Commission should have taken action and hasn\'t. That is certainly
> true now. Then in terms of my own experiences, it was both exciting to
> be there and to sort through a lot of this and frustrating because
> there were a number of occasions where I felt fairly strongly that a
> particular action should be taken and the law should be enforced and
> there was some combination of colleagues who felt otherwise. Now I
> would be a little careful about the notion of a fourth vote because
> that suggests that in the context there were three Democrats who were
> strongly pro enforcement and that I was just there to give them the
> extra vote to push the law and I don\'t think that was accurate. I
> think one of the things that I found during my time there was that the
> Democrats have been given a free ride because they could vote for
> enforcement knowing that it wasn\'t going to happen. Knowing that
> there were going to be three Republicans opposed. Also that was
> sometimes true when the cases involved Republicans, but then those
> votes disappeared when the cases involved Democrats. Be that as it
> may, I found my presence scrambled the voting dynamic but instead of
> that making four votes, that sometimes meant that there would be
> myself and one other in favour of enforcement and you would suddenly
> have a bipartisan group of Democrats and Republicans against
> it.\'[^683]

Although Jan Baran described how the Commission had characteristics in
common with other regulatory agencies, he also illustrated its unique
role in attempting to reconcile these philosophical differences:

> Jan Baran: \'There is a Kabuki theatre played here in Washington with
> respect to any enforcement agency. You have the government
> decision-makers, you have the constituency of those who are affected
> by the government decisions. Then you have self-described public
> advocates, and the public advocates think the agency is not doing
> enough. The people subjected to the agency\'s actions think that they
> are excessive, and somewhere in between we actually have a resolution
> between those viewpoints. But the debate tends to get more extreme
> because we have an underlying dispute over exactly what we should be
> regulating, and how should that law be enforced. And these are
> diametrically\...sort of like having a Federal Commission on abortion,
> no-one will be happy. There will be extremes on both sides. I think it
> is remarkable that we have as much regulation as we do. Thirty years
> ago, we didn\'t have any.'[^684]

Whilst enforcement has been weak, this failure should not be attributed
to mere partisan paralysis. The evidence presented has shown that,
whilst it tends to be the high profile cases that result in Commission
deadlock, these cases are few in number and their partisan composition
may be mixed. Additionally, the vast majority of decisions result in a
consensus of opinion because cases are clear and the evidentiary is
compelling. Individual interpretation of the case law also affects how
Commissioners cast their vote in enforcement cases. Commissioners will
refer to the relevant cases in their concurring or dissenting
opinions.[^685] The Commission\'s unwillingness to act owes more to the
controversy surrounding issues like express advocacy and coordination
and less to the \'back room trading\' commonly referred to. Finally, the
philosophical attitudes Commissioners have towards regulating political
money and constitutionally protected free speech also influences their
decision- making. The interplay of these variables amongst the six
Commissioners does not generate the frequent partisan deadlock described
by the reform community and other critics.

**[Further Legal Issues: Civil Enforcement in the Courts]{.underline}**

The FEC budget request (2001) set out two legal goals for its compliance
programme. Firstly, it aimed to \'initiate 10 or 15 civil actions to
enforce the law in cases where the conciliation process had
failed.\'[^686] The FEC *Twenty Year Report* (1995) asserted that the
Commission had won 90% of the 350 court cases it had been involved with
since 1980.[^687] Of the 1,179 cases between January 1994 and September
1998, 2% resulted in a suit authorization. The FEC initiated 6 civil
suits in 1996, 7 in 1997, 5 in 1998, 2 in 1999 and 5 in 2000.[^688]
Whilst these figures suggest that the FEC has become less willing to
litigate in recent years and has not been reaching the target set in its
Budget Request, quantitative data may not be a reliable indicator of
agency performance. For example, if the regulated community is not
brought into voluntary compliance by administrative fines, ADR or
educational outreach, the resultant increase in litigation might be
interpreted as a failure of these programmes. Additionally, the number
of suits authorized by the FEC may not reflect the current state of
litigation as respondents and other \'aggrieved\' actors may bring cases
against the FEC. Cases where individuals and groups seek redress against
the FEC are referred to by the agency as defensive cases. Suits brought
by the FEC are commonly referred to as offensive cases and here the
agency assumes the status of the plaintiff. Consequently, the FEC does
not always have strategic control over litigation choices. The second
goal set out in the Budget Request was to \'conclude some, or all of the
major cases involving complex legal issues remaining from earlier
election cycles, 1996 and 1998.\'[^689] One might argue that the
discussion focusing on the Commission\'s decision-making process has
shown that a number of significant issues remain, and are likely to
remain unresolved until binding legal precedent is established by the
U.S. Supreme Court. Despite the methodological problems alluded to and
the prevailing controversy and legal uncertainty surrounding
definitional and First Amendment issues, most interviewees, with the
exception of Commissioner Thomas, concluded that the Commission\'s court
record was poor.

Whilst Jan Baran has attributed the Commission\'s court losses to its
attempts at enforcing unconstitutional expansive regulation, he also
opined that the FECA had become obsolete in light of changing
technology.

> Author: \'The FEC has been criticised for its poor record in
> litigation cases, you mentioned that 50% of the Commission\'s problems
> is the current law, which is illogical, and not susceptible to
> enforcement, could you explain or expand on that?\'
>
> Jan Baran: \'Where did I say that?\'
>
> Author: \'It was in the *National Journal*.\'
>
> Jan Baran: \'Fifty percent of their problems is that they have a
> statute that is sometimes inscrutable. The Congress passed a law, that
> doesn't really define things like independent expenditures very well,
> that doesn't deal with precise definitions of the most basic terms
> like what\'s a contribution, what\'s an expenditure. The *Sun Hill*
> case in *Buckley v Valeo* spent much of its time narrowly defining the
> term expenditure and the term, for the purpose of influencing. The
> statute is not easy to enforce, or even interpret in the first place.
> That would be true for the Federal Election Commission as well as in
> court, and anyone trying to comply with it. Then there are areas where
> the shortcomings of the statute have been identified and judged by the
> courts and by Congress for multiple reasons have not been able to, or
> have refused to actually address the issue. Often the statute is
> declared a problem in some way, constitutional or otherwise, the
> courts and Congress will respond by passing another law. They said
> well OK, we're gonna fix the problem that the courts have identified,
> well we haven't had any change in the law since 1980 and during that
> period of time we've had the phenomenon of soft money. You've had the
> growth of issue advertising, you've had the introduction of mediums of
> communication that were not even imagined, when the law was passed:
> the Internet, cell phones, even fax machines, cable broadcasting was
> really not contemplated at the time the whole regulatory scheme was
> enacted in the early 1970s. A time when all communication was
> contemplated from three major television networks, whose viewers have
> declined at least 50%, and of course is in stiff competition with
> multiple other avenues of communication. This has produced a lot of
> problems for the agency. How do you regulate the Internet? How do you
> regulate the increasing variety of public debate and political
> discussion that goes on? Because the statute in some ways didn't
> anticipate they were going to regulate at all. Of course the courts
> have cut that back over the years, but...., that\'s the problem the
> Commission faces, and rather than make a decision in some of these
> areas like on the definition of express advocacy, on which I'm sure
> you're familiar, about which the courts have repeatedly rebuffed the
> Commission, the Commission should tell Congress, look we can't do
> anything about this because this is what the courts have said. If you
> want to do something about this you have to change the law.\'

Bob Bauer also supported the views expressed by his Republican
counterpart, Jan Baran.

> Bob Bauer: \'The problem may not be so much the way the statute was
> drafted, more that the statute is obsolete. The statute was drafted in
> a completely different time and place in utterly different political
> conditions and so it has been virtually upgraded by force of will. It
> has adapted in some circumstances to conditions utterly unknown to the
> people who wrote it.\'
>
> Author: \'Changing media?\'
>
> Bob Bauer: \'Absolutely, and the way money is raised, the way money is
> spent. Looking at how they are spending it and so forth. And the
> second problem is that the clash is always between not so much in the
> way the Congressional enactment has developed but between
> Congressional enactment\'s and the current state of American
> constitutional jurisprudence and that is the fundamental problem. What
> they are really complaining about is not that you can't write a
> provision saying that campaigns cannot do X, they can write it and
> they can write it very clearly. The problem is they are going to have
> trouble passing it by a Federal Judge.\'[^690]

In addition to the statutory obsolescence alluded to by Jan Baran and
Bob Bauer, Commissioner Mason opined that most violations of the FECA
related to behaviour that was *malum prohibitum* not *malum in se.* He
asserted that the reason why Commissioners were often unwilling to press
enforcement or file suit in District Court is that the Act rarely dealt
with issues involving \'evil intent.\' Many violations resulted from
breaking an arbitrary administrative prohibition. He also argued that
court cases lacking in evil intent meant that the judiciary were
unwilling to impose significant sanctions in the way of fines.[^691]

> Author: \'Is one of the main problems that the FEC has in enforcement
> is not the more traditional explanations but that it is actually the
> law itself?\'
>
> Commissioner Mason: \'Oh, absolutely. That is the case. Part of it is
> the fact that the statute is almost wholly prophylactic and there's
> almost, very few exceptions, things in the Act aren't *malum in se,*
> they\'re not bad in of themselves, they\'re simply prohibited for
> administrative reasons. That\'s one big problem that we have. What\'s
> the difference between a, an \$1100 contribution and a \$900
> contribution? Well, frankly nothing. Simply an arbitrary legal line
> drawn at such a point to prevent undue influence from being employed
> from a contribution that\'s too large. There could be a very vigorous
> argument about whether \$1000 is already way too high or already way
> too low. Wherever you draw the line, a dollar above, or a dollar
> below, it really doesn't make any difference. So that\'s one of the
> problems. So that when someone makes these contributions, most of the
> time as was recognised in Buckley, even the larger ones, nothing bad
> *per se*, was intended. Sometimes the violations that we do see, and
> sometimes prosecute are, appear to be, free of evil intent. They are
> pursued by candidates and staff members who are just eager to win and
> they want to raise as much money as they can by people who are
> enthusiastic about candidates and want to help as much as they can
> without any expectation on either side of anything improper going on.
> That is a big part of our problem. That most of the time there isn't
> any ill intent behind the violations and therefore Commissioners are
> reluctant to come down too hard on violators who appear to have lacked
> any evil intent. In the past when we have gone to court we have had
> trouble getting large fines imposed because judges have the same
> reaction. There's actually a chapter in the Gais book where the
> prosecutors in Wisconsin state laws have tried to push a little harder
> on criminal prosecutors for election law cases. They refer to Twinkies
> cases, and Twinkies cases are little snack cases that are
> insubstantial and if you are a local prosecutor deciding if you want
> to bring a case that has do with drugs and guns, or something like
> that, or a political case, it doesn't even have to be corruption *per
> se*, a violation on administrative limits\....you have to kind of
> wonder. That problem is there.\'[^692]

However, the most widely held criticism has been of the litigation
choices made by the FEC. Therefore, court losses are attributed to the
faulty or unwise enforcement decisions made by Commissioners. Whilst the
reform community have consistently criticised the Commission\'s
timidity, Republican and Democratic Party lawyers argue that the agency
has been foolhardy in attempting to litigate cases involving unsettled
areas of law. The PWC (1999) audit set out that:

> \'A consistent legal theme shared by most practitioners was the FEC
> use of the compliance process to set policy. Those attorneys who
> represent the filing community suggested that the FEC should focus on
> settled areas of law. They suggested that enforcing and litigating
> unsettled areas of the FECA misused FEC limited compliance resources.
> On the other hand, several public interest advocates thought that the
> FEC was not aggressive enough in pursuing compliance actions to affect
> unsettled areas of the law.\'[^693]

Donald McGahn criticised the Commission\'s approach to litigation
commenting:

> Donald McGahn: \'Their court record is abysmal. And if they wouldn't
> go after people in court on frivolous legal theories, where the courts
> have already said it\'s a first amendment right to do what ever it is
> at issue and they keep trying to come up with new mousetraps to catch
> somebody. They had to pay court fees in a recent case on the fourth
> circuit. In an enforcement matter they had to pay some thirty grand.
> So I think smarter enforcement may be the way to go.\'
>
> Author: \'Doesn't the FEC structure, with three Republicans and three
> Democrats?\'
>
> Donald McGahn: \'Yea, you would think. But the Commission, the
> Commissioners are not judges. Unlike,...well you don't have to be a
> judge to be a judge, you don't have to be a lawyer to be a judge but
> today every judge I know is a lawyer. Whereas the Commissioners are
> not all lawyers they\'re not trial lawyers, they\'re not litigators,
> they\'re not necessarily steeped in rules of civil procedure and the
> merits of cases.\'
>
> Author: \'So they are going with the recommendation of the general
> counsel then?\'
>
> D. \'Yea.\'[^694]

Bob Bauer expressed a similar criticism of the Commission\'s enforcement
choices:

> Author: \'Firstly, I wanted to bring up Commissioners. Since Trevor
> Potter left, and with the appointment of Brad Smith and David Mason,
> do you think there has been a move away from enforcement?\'
>
> Bob Bauer: \'The problem the Commission has had is not so much its
> willingness to enforce, but the strategic choices that they made. The
> way they went about their enforcement responsibilities. Which as you
> know by looking at the court decisions met largely with failure, and
> while some people would say that the Commission is lacking enforcement
> vigour, some people might say, Commissioner Sandstrom is an example,
> is really interested in organising the enforcement strategy a little
> bit more carefully and choosing their cases a little bit more wisely.
> So that (a), they have enforcement priorities, and (b), when they seek
> to enforce, for example by litigation, they stand a better chance of
> bringing cases that are likely to be successful. So while it is true
> Bradley Smith represents a peculiar choice for the Commission, Mason
> and Wold, and to some extent Sandstrom, also represent a move away
> from a mode of doing business, a way of doing business, that is by and
> large not terribly successful.\'[^695]

One might argue that whilst litigating in unsettled, or controversial
areas of the law might result in more court losses, it tends to be these
controversial areas that have the most significant impact on the
regulated community. Therefore, if one were to adopt a cautionary,
restrained litigation policy, although the Commission might be more
successful in court, its impact on the regulated community would be
less. Evidence suggests that this more inhibited approach is what
Commissioners Smith, Mason and Toner wish to develop. Not only is that
evidence presented in the discussions focusing on express advocacy and
coordination but Commissioners have also called for this change during
their confirmation hearings. Commissioner Thomas referred to this when
interviewed about enforcement strategy:

> Commissioner Thomas: \'It's no mystery that some of the newer
> Commissioners, even at their confirmation hearings, argued that the
> FEC ought to basically back off of trying to pursue tough cases that
> involved the more complex areas of the law, like what is coordination,
> like what is express advocacy, instead the Commission ought to focus
> on what the Commissioners said were \'meat and potatoes\' type of
> violations. Late filing of reports, inadequate disclosure of reported
> information, or just the very straightforward \$1000 excessive
> contribution cases. And that I think pressure from some of the newer
> Commissioners has really led to a shift in Commission emphasis,
> there's no doubt about that.\'[^696]

Larry Noble noted that whilst the Commission had lost a number of cases,
this was to be expected when regulating a First Amendment policy area.
Yet he also attributed the Commission\'s poor litigation record to its
unwillingness to lodge appeals in cases where it lost. For example, if
respondents consistently appeal unfavourable decisions and the FEC does
not, one might expect the Commission\'s court record to be poor.
However, despite these problems, the former FEC General Counsel was not
overly dissatisfied with the Commission\'s litigation record.

> Author: \'The Republicans in particular have criticised the FEC for
> its poor record of litigation in enforcement cases. For example, I\'m
> thinking of coordination and express advocacy. Is this an accurate and
> fair criticism?\'
>
> Larry Noble: \'It is true that the FEC has lost several cases. I
> don\'t think the criticism is totally fair as to a certain extent the
> Commission is working with one hand tied behind its back. And to
> answer this question, I have to start with one proposition. The FEC is
> regulating first amendment area, and that is always very difficult. It
> is true that many courts have been very hostile to regulation in this
> area. However, what also happens is that the FEC has lost some cases
> but because of the make up of the Commission it has not appealed some
> of these cases. So what happens right now in many instances, that only
> when the FEC wins is it appealed by the other side. Which means that
> the other side keeps trying to get it overturned. When the FEC loses a
> case the FEC often doesn\'t appeal it. A classic example of that is
> three/three splits, or sometimes not even three/three splits. The
> coordination case, the big coordination case that that the FEC lost to
> the Christian Coalition, was a decision 4 to 2, not to appeal the
> decision. And what was so shocking about that was that the district
> court judge who wrote this long treatise on co-ordination and
> recognising in it that she was writing new law expected the case to be
> appealed, said in her opinion that she expected the case to be
> appealed. And the FEC by a vote of 4 to 2 decided not to appeal. And
> yes, the FEC lost their case, and nobody will ever know what would
> have happened had the FEC appealed. Now, also what is often ignored in
> those claims is that when cases have gone up to the Supreme Court,
> sometimes the FEC are not involved, and the court has reversed lower
> courts. The two cases I\'m thinking of is the Shrink Missouri PAC case
> which dealt with contribution limits. The FEC would not get involved
> in that case even though I thought it should, and the Supreme Court
> upheld contribution limits. This was this case about state law. Most
> recently, in the Colorado Republican case, which is called Colorado
> Republican Party 2, not the earlier case, which the FEC did
> lose,[^697] the Supreme Court by 5 to 4, upheld the FEC\'s position.
> If you go back and look at what pundits were saying, what observers
> were saying before those two cases, \'oh the government\'s gonna lose.
> The Supreme Court\'s gonna finally strike down these laws.\' But
> actually when these cases get in the Supreme Court, the record has not
> been bad at all. It\'s rather a complicated scenario recognising that
> it is a hard area to regulate, and the courts have not always been
> friendly, but also the FEC has not always been as aggressive as it
> should be in trying to get these cases resolved.\'[^698]

Commissioner Thomas expressed a similar view to that of Larry Noble. The
Commission had established a reasonably successful record in a difficult
policy area.

> Author: \'The Republicans that I've spoken to have pointed to the
> FEC's record of losing in court. They are saying that the FEC are
> going after the wrong things and bringing unwarranted cases.\'
>
> Commissioner Thomas: \'Actually if you look at our Supreme Court
> record, most recently, the Colorado Republican Party litigation that
> err, whether the party or not co-ordinated party expenditure limits,
> whether is was constitutional, a lot of folks thought we might lose
> that. Actually, I thought we might lose that. But we won. In the area
> of express advocacy, the only case that the FEC ever brought, a case
> that the Commission itself brought,\...FEC v Massachusetts Citizens
> for Life, we won on the underlying issue of whether those
> communications were express advocacy. It's just that the court on its
> own initiative carved out an exception, that, well, there are certain
> kinds of non profit, ideological corporations that we'll let spend
> money for those kind of express advocacy. You know it\'s true that
> there have been courts, district courts, and courts of appeal that
> have seized on the express advocacy test to say that certain proposed
> regulation was unconstitutional. But in terms of FEC court battles we
> can always point to other decisions that go the other way and whether
> or not the Supreme Court has resolved these big issues\...\...in many
> cases the Supreme Court has not yet. So I don't think that the FEC's
> record is that bad. If you look at what\'s going on you'll also see
> that there has been one lawyer and his related groups has been
> bringing lots of these lawsuits around the country. And they don't
> even involve the FEC, many of them are state level challenges, the
> state provisions are analogous to the FEC rules. And a lot of the
> losses that everybody points to\....and attributes as if they were FEC
> losses, have not involved us, ..and our lawyers didn't get a chance to
> argue, so when you look at the cases where our lawyers have had a
> crack at it, I think we've done pretty well.\'[^699]

Finally, Commissioner Thomas and Commissioner Mason opined that
respondents unwilling to engage in the conciliation process tended to be
the ones with substantial financial resources and, or a strong legal
argument. Both Commissioners were asked:

> Author: \'As the FEC only attempts to litigate so many civil cases per
> year, and high-profile, well financed individuals are most likely to
> fight the FEC, do these individuals enjoy certain *de facto*
> immunities from enforcement?\'
>
> Commissioner Mason: \'I don't think so. There was some discussion of
> litigation strategy in the PricewaterhouseCoopers Report, which I
> agreed with. It appeared to me that the Commission, at least
> historically, had not been using litigation as a strategic enforcement
> tool. That they hadn't been choosing what kind of cases they wanted to
> litigate and pursue those cases with particular vigour. Rather they
> had been litigating wherever people would fight and that those willing
> to settle cases were settled out, or those that were stubborn for one
> reason or another\...that meant that the Commission\'s opponents would
> consistently be actually the people who had the resources to fight,
> and were unwilling to knuckle under through the administrative
> process, or people who thought they had a very good argument. And the
> result of those is that the Commission\'s record has been particularly
> poor. You should have expected that, given the policy you follow. So
> we haven't really approached a strategic litigation policy. It\'s been
> more of a complex problem and we don't have any consensus on the
> Commission about that. In the last few years we have not been as ready
> to take cases to litigation.\'[^700]

Commissioner Thomas responded:

> Commissioner Thomas: \'I think that they don't enjoy immunities from
> enforcement. But if they are willing to pour a lot of resources into
> defending themselves, they can sometimes beat us because they are
> willing to put high price legal talent to assert the various legal
> defenses that some judge might ultimately come to accept, I suppose if
> you look at it as a matter of odds, if you have the money to fight,
> and raise all sorts of defenses before a judge you are going to have a
> better record at getting a favourable ruling from a judge than someone
> who doesn't even try to go before a judge.\'[^701]

One might argue that the Commission\'s litigation record reflects the
courts\' general hostility towards regulating constitutionally protected
free speech, the controversy and lack of clarity surrounding issues like
express advocacy and coordination and the fact that the most combative
respondents also tend to be the most well resourced. Consequently, the
FEC\'s Supreme Court record has been mixed and its record in District
Courts has been poor. Additionally, whilst the Commission may wish to
bring cases of its own volition before the Supreme Court in order to
enforce the law and establish legal clarity, it was proscribed from
doing so by the high Court in *FEC v NRA Political Victory Fund*
(1994).[^702] However, a more strategic approach to FEC litigation
policy may develop as a consequence of the new litigation committee that
was established by Commissioner McDonald in 2000.[^703]

**[Conclusion]{.underline}**

In conclusion, the FEC experiences inadequate leadership because power
was deliberately diffused amongst the collegiate Commissioner structure
and was further divided between General Counsel and Staff Director. This
makes agreement on policy goals difficult to achieve. When the
Commission's Chairman enunciates policy, that policy generally becomes
transitory as the new Chairman affiliated to the opposite Party assumes
office. Commissioner Mason opined that this was a deliberate
Congressional strategy to prevent strategic planning by the Commission.
The presence of *ex officios* on the Commission reflected Congressional
interest in the Commission\'s advisory opinions, rule-making and
enforcement activities. Although interviewees representing diametrically
opposing views both described the *ex officios* negatively, either
referring to them as \'Congressional spies\' or \'brooding
taskmasters,\' their influence over the enforcement process remains
unclear. Whilst *ex officios* were proscribed from voting in enforcement
matters, they may have exerted an indirect influence by articulating
Congressional views. The convention of confirming each Party\'s nominee
in tandem is a reflection of the political nature of appointment and of
a Commission equally balanced between Democrats and Republicans. Despite
the *Buckley* decision, the *de facto* appointment process remains
divided between President, Senate and House. This \'gentleman\'s
agreement\' has ensured that Congress and their two leading election
lawyers, Bob Bauer and Jan Baran, continue to dominate Commissioner
selection. Whilst different incumbents of the White House may either be
more or less assertive in ensuring their own choices are confirmed by
the Senate, Presidents have generally sought to placate any strong
Congressional objections. The Commission is not and was not designed to
be independent. The fear that the Commission might \'provide room for
partisan misuse or for administrative action which does not comport with
the intent of the enabling statute\' was expressed in Buckley.[^704]
Therefore, Congress established a bipartisan structure and a mixed
majority-voting requirement. Whilst Democracy 21 has advocated the
establishment of an enforcement body insulated from politics and headed
by one \'highly visible, publicly credible administrator,\' historical
precedent suggests that Congress would oppose such a proposal.[^705] The
introduction of Commissioner term limits was also designed to reduce the
agency\'s independence. Those at the apex of the structure lose
institutional memory, Commissioners become more like \'tourists\' and
obtaining employment elsewhere becomes the primary consideration.
Commissioners limited to one six-year term are likely to be particularly
mindful about angering their allies in government and the private
sector. Those who assert the need for term limits usually refer to a
need to \'infuse new blood\' into the Commission. However, this is a
bogus argument as the recent \'infusions,\' Commissioners Smith, Mason
and Toner, either oppose the constitutionality of the statute or are
just unenthusiastic about regulating political money and free speech.
Whilst partisan deadlock has undermined enforcement of the statute,
public interest advocates and journalists misrepresent the Commission\'s
decision-making process. Consensus, legal interpretation, evidentiary
and philosophical outlook all affect how Commissioners cast their vote.
Finally, although interviewees either thought that Commissioners had
made inappropriate legal choices or no legal choices, the Commission\'s
court record has not been impressive. These court losses, coupled with
the departure of Trevor Potter, and the arrival of Commissioners Smith,
Mason and Toner, will result in a much more cautionary and restrained
attitude towards litigation.

# CHAPTER 4

**[Political Management of the Enforcement Process]{.underline}**

Public interest advocates have often referred to the FEC as a
\'toothless watchdog,\' as an ineffectual enforcer of the law which
adopts a *laissez-faire* attitude when it comes to regulating important
issues and high profile actors.[^706] However, for some incumbents the
FEC stifles politics, infringes free speech, burdens candidates and
grass roots organisations with unnecessary regulations, punishes the
innocent and is an inefficient and wasteful bureaucracy. Bob Livingston
(R-LA) commented:

> \'The FEC has become a burdensome bureaucracy which makes running for
> office and participating in the electoral process a complex and
> dangerous endeavour.\'[^707]

Whilst Wayne Hays (D-OH) proved the exception, it has generally been
conservative Republicans who have expressed this latter view. One can
explain, at least in part, the weak enforcement alluded to by the reform
community by examining the way some incumbents have used their budgetary
and oversight power to undermine enforcement. Should enforcement be
perceived as too regulatory or aggressive, these actors rein in the
agency through budget cuts, micro-managing resources by ring-fencing
appropriations, authorising expensive and lengthy investigations of the
agency and targeting senior staff for removal.[^708] Consequently the
nature of enforcement affects FEC Congressional relations. When the
agency pursues more cases of offensive litigation, drafts unpopular
rules and increases fines, so the relationship deteriorates. Ironically,
Bob Livingston (R-LA) alluded to this in the agency\'s FY 1995
authorisation hearing when he asked Commissioner Potter:

> Rep. Bob Livingston: \'Is it possible that the FEC decision-making
> could be influenced or intimidated by an influential Member who may
> have jurisdiction over the FEC?\'
>
> Commissioner Potter: \'When an enforcement agency has an oversight
> component, you ask, is there a risk that it will be intimidated or
> influenced? There is always a risk. That risk is inherent in a
> statutory scheme where the government branch that is confirming
> members of the commission and appropriating our budget and overseeing
> us is also comprised of individuals who may from time to time come
> before the commission.\'[^709]

As the agency responds to the will of Congress, pursuing enforcement
that has less substantive impact on the regulated community, incumbents
and their political allies, so calmer relations ensue. This view finds
theoretical support in the work of Barry Weingast who attributes the
fluctuation in agency behaviour to the changes in committee and
subcommittee membership. Weingast and Moran comment:

> \'Congressional committees play an important role in determining
> regulatory policy. Second, if the policy preferences of the committee
> members remain stable for long periods of time, then, *ceteris
> paribus*, agency policy remains stable. Third, one important
> determinant of agency policy change is a change in the composition of
> the oversight committees. And finally, those agencies not pursuing
> Congressional interests are most likely to bring forth Congressional
> sanctions.\'[^710]

Compelling evidence to support Weingast\'s view will be presented in
this discussion. During the 1990s Republicans like Bob Livingston
(R-LA), Jim Kolbe (R-AZ), Bill Thomas (R-CA) and Mitch McConnell (R-KY)
used their budgetary and oversight powers to foster a more acceptable
non-controversial form of regulatory enforcement. They prefer a
disclosure-based model encompassing bright line regulation in the form
of administrative fines for late and non-filers combined with low impact
programmes like ADR and educational outreach. These initiatives are
sometimes described in Congressional hearings as \'thinking outside the
box,\' which is code for enforcement that is less adversarial and has a
less substantive effect on the regulated community.[^711] Commissioner
Sandstrom commented:

> \'Until the Commission is able to stop the flow of party soft money
> and non party issue ads, judging its performance by programmes like
> Administrative Fines and ADR is a bit like judging the performance of
> the crew of the Titanic by how well the band played as the ship
> sank.\'[^712]

However, this regulatory penchant is not only limited to Republicans and
FEC critics. Steny Hoyer (D-MD), a more supportive voice and current
ranking member of the FEC\'s appropriation committee, has frequently
expressed the view that accurate and timely disclosure should be the
FEC\'s main priority.[^713] Therefore incumbents of both Parties often
see the American electorate as the most desirable regulator. They imply
that a well-informed citizenry exercising their suffrage deters any
unseemly relationships between contributor and recipient. However,
whilst information is important, the apparent passion that some
Congressmen display towards disclosure is often merely a ruse designed
to avoid addressing the inadequacies and resource constraints that
inhibit more traditional methods of enforcement. Neither Party calls for
any significant increases in investigators, lawyers or accountants. The
regulatory vision preferred by Congress has much in common with the
views of Bruce Cain and Todd Lochner. For them, enforcing the current
system of limitations and prohibitions is undesirable and doomed to
failure. They opined:

> \'If politics is indeed a market, then let the market solve the
> problem. Consider abolishing contribution and expenditure limits and
> instead emphasize transparency based on immediate Internet disclosure.
> If voters actually care about where a candidate\'s money comes from,
> or how much money is spent, let them vote on such distaste. Should
> they not to do so, or they simply do not inform themselves on the
> matter, so be it-such is the nature of living in a democracy when
> voters are not, in fact, made in Madison\'s image.\'[^714]

Although government that has a duty to protect the integrity of the
electoral system, many inside and outside Congress oppose the use of
regulatory power in this policy area. As such, disclosure has generally
been supported, whilst enforcement has been opposed and undermined. This
assertion was put to Tina VanBrakle, FEC Director of Congressional
Affairs:

> Author: \'I don't know if you would confirm this ..Congress seems to
> be saying really we don't need to address some of the more substantive
> violations because what the FEC should be doing, what it was formed
> for, was essentially disclosure.\'
>
> Tina VanBrakle: \'Right, put it out, no matter what they\'re doing,
> just put it on the public record.\'
>
> Author: \'Sure, that people should be voting at the ballot box
> according to financial relationships, contributions and disbursements
> and that is really what you should be doing. Whether the FEC agree
> with that or not.\'
>
> Tina VanBrakle: \'Well, I'm not going to answer for the FEC, you will
> get the Commissioners to answer those kind of questions. It's hard to
> see how a programme can be successful if there is no enforcement of
> disclosure and I know that a lot of Republicans and I think some
> Democrats now on the Hill would like us to become more of a disclosure
> organisation\...rather than an enforcement organisation.\'
>
> Author: \'This is what I'm getting from Republicans. Look, the FEC
> shouldn't be worried about all these substantive violations, it's not
> their role, it\'s not what they were set up to do. They should enforce
> disclosure and they should enforce it better.\'
>
> Tina VanBrakle: \'Yea, exactly, that is the Republican position. Yea,
> we're not out there to figure out express advocacy and what soft money
> is allowed and so forth but we should be enhancing the disclosure
> aspect of it. And that is kind of where we're heading. It's not a good
> question for me to answer, I'd rather you talked to the Commissioners
> about that.\'

However, a weakness in Weingast and Moran\'s Congressional control
thesis is that they fail to consider how other variables might affect
agency behaviour. For example, little has been written on the way the
White House, through the Office of Management and Budget (OMB), can
affect enforcement performance. Favourable responses to FEC budget\'s
requests and offering political support when Congressional relations
become strained or confrontational could make the OMB a valuable FEC
ally. Conversely, and this has been more common, a lack of support from
OMB and the administration can contribute to the agency\'s fiscal and
political difficulties. By way of an introductory context, the first
part of this chapter sets out some of the unique financial
characteristics of the FEC and discusses agency workload, staffing and
budgets requests. This will be followed by an examination of FEC
Congressional relations. Although the relationship has often been
strained by particular actions of the regulated and the regulator, the
relationship has endured two identifiable periods of conflict. During
the late 1970s and early 1980s the relationship deteriorated as a result
of the FEC\'s unpopular random audit programme and because those
philosophically opposed to campaign finance regulation won control of
the White House and the Senate.[^715] The second phase in worsening
relations began in 1994 when Republicans won control of the House, and
then the Senate the following year. This particularly confrontational
period in FEC/Congressional relations lasted for approximately four
years. During this four-year period, key Republican leaders perceived
the FEC as too regulatory and vigorous in their enforcement efforts.
Today, FEC/Congressional relations have become far more accommodating
and consensual. Both institutions now appear to understand each other,
with one interviewee remarking off the record, \'it\'s like a
\'love-fest\' at the moment.\' However, this new working relationship
has come at a price. The nature of enforcement now reflects the
Congressionally preferred model alluded to earlier in the introduction.

**[FEC BUDGETARY POLITICS]{.underline}**

**[Budget Size and A Mandate That Increases Fiscal
Vulnerability]{.underline}**

In comparison to other Federal Regulatory Commissions\' the FEC budget
is small. Brooks Jackson described it as having \'one of the smallest
budgets of any Federal agency.\'[^716] The Table below illustrates the
relative size of the FEC budget.

[Table 4.1: U.S Federal Regulatory Commission Budget
Requests]{.underline}

  --------------------------------------- --------- ------ ---------------
  Title                                   Request   Year   Source

  Securities & Exchange Commission        466.9m    2003   www.sec.gov

  Equal Employment Opportunities          303m      2001   www.eeoc.gov
  Commission                                               

  Federal Communications Commission       278m      2003   www.fcc.gov

  Federal Trade Commission                171m      2003   www.ftc.gov

  Commodity Futures Trading Commission    82.8m     2003   www.cft.gov

  Federal Election Commission             46.9m     2003   www.fec.gov
  --------------------------------------- --------- ------ ---------------

Although the budgetary decisions of those who hold power over the
Commission might involve quite modest sums, because the budget is small,
these can have a considerable effect on the agency\'s ability to enforce
the law. Larger agencies may have more capacity to make savings and
might be more adept at managing fiscal cuts through efficiency measures,
reducing staff through attrition, or delaying the implementation of
non-essential new programmes. Whilst the FEC has been able to make
considerable productivity gains over the years, especially in requests
for additional information (RFAIs) and data coding, the FEC cannot rely
on this strategy as a long-term solution to fiscal constraints when
faced with the realities of increasing case complexity, higher numbers
of respondents per MUR and rising levels of financial activity.[^717] A
full budgetary history is set out in appendix E.

Additionally, staffing levels at the Commission have not kept pace with
the growth in political contributions and disbursements, both of which
increase agency workload.[^718] As disbursements increase, so do the
number of transactions to be processed, reports scrutinised, (RFAIs)
issued, more violations are detected and more complaints are
received.[^719] In 1980, political disbursements in Federal elections
stood at \$768 million and the Commission had a total of 270 FTEs. By
1996, disbursements had grown to \$2.738 billion, a rise of 256.5% since
1980 whilst staffing had only risen by 14% to 308.5 FTEs.[^720] The work
of the Commission is by its very nature highly labour-intensive and
staff salaries and other benefits consume approximately two thirds of
the agency\'s budget.[^721] Thomas and Bowman asserted that \'analyzing
records, taking depositions and drafting reports, interrogatories and
briefs takes investigators, auditors and lawyers.[^722] Therefore,
staffing levels have a significant effect on agency performance. The OGC
accounts for just over 25% of the agency budget and over 30% of its
FTEs.[^723] However although OGC staffing had risen from a September
1996 low of 88 FTEs to 113 in FY 2000, if one examines the functional
allocation of staff, a bleaker picture emerges.[^724] For example figure
4.2 shows that relatively few lawyers were available for to work in
\'front line\' enforcement duties and the OGC only employed two
investigators.[^725]

[Table 4.2: OGC Staffing Profile FY1999]{.underline}

  ---------------- ------------- --------- -------- ------------ ------- -------
                   Enforcement   PFESP\*   Policy   Litigation   Other   Total

  Attorneys        27            11        10       9            1       58

  Paralegal        10            5         2        1            0       18

  Investigators    2             0         0        0            0       2

  Ethics           0             1         0        0            0       1

  Library          0             0         0        0            2       2

  Secretaries      4             1         1        2            1       9

  Administrative   4             0         0        1            4       9

  Total            47            18        13       13           8       99
  ---------------- ------------- --------- -------- ------------ ------- -------

Source: U.S. House of Representatives, Committee on Appropriations,
Subcommittee on the Treasury, Postal Service and General Government
Appropriations, FY 1999 36. \* Public Financing, Ethics and Special
Projects.

In contrast to the rather Spartan staffing levels of the OGC, the
Department of Justice assigned 125 staff to investigate the allegations
surrounding the 1996 Federal elections. Additionally, in 1997 the Senate
Governmental Affairs committee reportedly requested \$6.5m and 80 staff
to investigate the \'illegal and improper\' activities arising from the
same election cycle.[^726] The Senate committee proposed to employ 28
lawyers on the majority side and 20 on the minority side. The Chairman
of the committee, Senator Fred Thompson (R-TN) commented, \'if you\'re
not willing to pay the freight, don\'t load the wagon. We are about
serious business, it will take money.\'[^727] Conversely, the
administration and Congress have ensured that the FEC has had difficulty
matching available resources with the increasing demands made of it.

**[How Much Is Enough?]{.underline}**

Estimating and managing the increases in the agency\'s workload has also
been difficult. Some increases, like those arising from a presidential
election year, can be planned for and incorporated into budget requests.
However, unexpected increases in workload, like the steep rise in
financial activity surrounding the 1992 campaigns and the extraordinary
number of complaints that arose from the 1996 elections, cannot be
planned and budgeted for.[^728] Therefore a small agency like the FEC
which has little or no excess capacity in its budget often finds it
difficult to cope with any additional burdens without a supplemental
appropriation, the 1996 allegations being a case in point. Additionally,
as the FEC regulates incumbents, it has been acutely aware that its
actions attract particular scrutiny. Therefore, it has been careful not
to make inflated budget requests. Commissioner Joan Aikens commented:

> \'This agency has always been careful in its budget requests not to
> ask for the moon if we don\'t think it is necessary. Most agencies
> will pad their budgets so they can get cut and not worry about it. We
> have always tried to be honest with them because we know we are under
> extra scrutiny. When you regulate the guys that authorise and
> appropriate you, you\'ve got to be careful. So we know we\'re under
> extra scrutiny, so we don\'t ask for extra appropriations. We only ask
> for what we think is necessary to do the job.\'[^729]

Larry Noble was particularly critical of the conservative budget
requests made by the agency. He opined that the requests made were
pitched below what was needed because the Commission wished to avoid
offending Congress and was mindful about provoking Congressional
retaliation:

> Larry Noble: \'I always felt that the agency should ask for what it
> needs and be told no and that be placed on the record. Because then
> what happens is that if you agreed to what they say ultimately and you
> can\'t do the work, you\'re saying that I can do the work for that
> much money and then they come back next year and they say why
> couldn\'t you do the work? Well the answer was that we didn\'t ask for
> what we needed, you told us not to ask for what we needed.\'
>
> Author: \'This is what I didn\'t understand, if you look at the budget
> request (2001) it says that we are not going to ask for any more staff
> this year but it will severely limit our ability to enforce the law.\'
>
> Larry Noble: \'Right, that is about a negotiation. That the number
> they will ask for will be a low number that they ultimately ask for.
> That in the end is all anybody looks at. So I was always frustrated
> that I\'d go off with a budget request, there were some years that
> they would put in what I asked for and I must say I became part of
> that culture too. Whilst I would ask for more than they would ask for,
> I would not necessarily ask for all that I thought we needed because
> there is a level at which they are just going to laugh at you. But my
> frustration would be, I need fifteen more people and they would ask
> for three and then the next year they\'d say why didn\'t you get the
> work done? Well we told you that we needed more people, no you only
> asked for three more people and that is the game that is played. The
> agency is far too concerned about what Congress thinks. They view it
> as if they\'ll get angry at us they\'ll give us even less. Well you
> know, if you don\'t ask, they\'re perfectly happy to cut you even
> further and they know that you aren\'t gonna start any problems with
> them. I think the agency should be much more aggressive about its
> budget.\'[^730]

Although Commissioner Aikens and Larry Noble asserted that the
Commission had been circumspect about setting the level of the
Commission\'s budget requests and staffing needs, this had not always
been the approach. This modesty was brought about after more ambitious
requests were repeatedly denied by Congress. Consequently, the
Commission concluded that making budget requests significantly above
inflationary levels was a pointless exercise. Congress has appeared more
content when the Commission self-censored its requests for funding. For
example, in the FY 2001 appropriation hearing Chairman Jim Kolbe (R-AZ)
commented in his opening statement:

> \'Let me begin by saying that I want to give you a pat on the back, I
> want to commend you on your budget justification documents that have
> been used in preparing this years budget request. I think it is fair
> to say that this is the first time in nearly six years that the
> Federal Election Commission has not painted a picture of doom and
> gloom over its current and past budgets. I think there has been a real
> concerted effort made to concentrate on what can be done with the
> resources available rather than simply focusing on all the things that
> have been missed because of the things that were not provided in
> appropriations in past years. I think it is a positive development of
> looking at the glass being half full rather than half empty.\'[^731]

More recently, one might argue that the Commission has internalised an
attitude that discourages asking Congress for what the agency might
require, instead it asks for what Congress might conceivably agree to.
When asked why the Commission had not asked for any additional
enforcement staff in the FY 2001 budget, Donald McGahn replied:

> Donald McGahn: \'Perhaps for years they asked for the Moon and the
> stars and they never got near the Moon and maybe they are trying to
> put in a more realistic request.\'[^732]

When asked the same question, Commissioner Mason confirmed the change in
budgetary expectation:

> Commissioner Mason: \'We stopped after 98 asking for additional staff
> because we realised we weren't going to get any. And prior to 98,
> Commissioners had understood that but felt that they ought to continue
> to do that anyway to set the record out and say, here's the reason why
> were not getting at these cases. My view was that that wasn't helping
> us any. We might as well stop asking for what we're not going to get.
> It was better to devise ways to do a better job with what we had and
> then go back after we'd made a good faith effort to whittle down the
> size of the problem. Instead of saying, well we need a hundred more
> people, you know what, gee, you know what ten, we could eliminate this
> problem, so we'd have a much better case.\'[^733]

In summary, the combination of a small budget, the sometimes
unpredictable yet growing agency workload, staffing constraints and the
Commission\'s modest budget requests, make it particularly vulnerable to
the fiscal predilections of the executive and Congress.

**[FEC/Congressional Relations]{.underline}**

The FEC is unique in that it regulates those who control its budget.
This has enabled Congress to micro-manage FEC enforcement through
appropriation, authorisation and oversight hearings.[^734] One of the
earliest indications of Congressional willingness to exert its influence
over FEC enforcement was the 1979 removal of random audit authority.
Random audit not only promoted voluntary compliance but also acted as a
deterrent to wilful non-compliance.[^735] The audit programme aimed to
examine the committees of approximately 10% of House and Senate
candidates. After the FEC investigated Charles Rose (D-NC) and Willis D.
Gradison (R-OH) on groundless and anonymous complaints, Congressmen
asserted their opposition to what they saw as FEC intrusion in their
affairs.[^736] Congressmen preferred what Brooks Jackson called the
\'honour system,\' where voluntary compliance is assumed on trust.[^737]
Despite being introduced in 1976, Wayne Hays (D-OH) expressed his
hostility to random audit when he shouted at FEC Chairman Thomas Curtis:

> \'Are you coming to my District without a complaint to audit me? If
> you\'re getting your authorisation from me you won\'t. I don\'t trust
> you or anybody else spot-checking. I\'m telling you over my dead body
> are you sending anybody anywhere unless you send them
> everywhere.\'[^738]

As House elections took place every two years, Representatives were
particularly irked by the negative connotations that might be drawn by
being audited by the FEC.[^739] Referring to the Congressional reaction
to random audit, Jan Baran commented \'you would have thought that
someone had planted a nuclear device on Capitol Hill, everyone was
scared.\'[^740]

When Theodore M. Risenhoover (D-OK) was audited, he told FEC
Commissioners:

> \'Congress meant well when it passed the FECA but it may have created
> a monster. You may see the legislation completely gutted. If you think
> we can\'t change this legislation, or repeal it, you\'re
> wrong.\'[^741]

James J. Delaney (D-NY), the Chairman of the House Rules Committee, also
voiced his opposition to the random audit programme when some
irregularities were found in his accounts. Delaney questioned \'the
wisdom of Congressmen appropriating money for the sake of investigating
themselves.\'[^742] Random audit was also criticised by Frank Thompson
(D-NJ), former Chairman of the House Administration Committee.[^743]
Unfortunately, the staff that carried out random audit during 1976 and
1977 were often described as inept, inexperienced, rude and overzealous.
James Delaney (D-NY) said that those who audited his books \'didn\'t
know a thing about the law.\'[^744] However the programme was not funded
adequately, lacked staff and the inexperience alluded to might be
expected of a fledgling agency.[^745] Despite these failings, Common
Cause asserted that one third of House members audited had received
illegal contributions.[^746] The combination of poor audit performance
and Congressional hostility to the programme provoked the House
Administration Committee to stop funding the initiative. This was later
upheld by the full House in a voice vote. Although the Senate deleted
the provision in conference committee, the Commission dropped the
programme in 1978 when the FEC divided along partisan lines on the
issue. Less than a year later the matter was dealt with in a more
substantive manner when the FECA 1979 removed FEC random audit
authority.[^747] Whilst the reform community and the FEC have advocated
the reintroduction of random audit authority, many Congressmen view it
as unnecessary, undesirable and intrusive. When interviewed Larry Noble
advocated its reintroduction and Donald McGahn made the case against:

> Larry Noble: \'I always thought that the agency and a lot of people
> agree with this and thought the agency should have been able to do,
> was the random audit authority, which was taken away from us. This
> affects deterrence. The ability to just randomly audit committees and
> the fact of the matter is if you\'re out there, there\'s certain
> people who follow the law no matter what you do. There\'s certain
> people you can tell that there\'s no enforcement going on and they\'re
> gonna follow the law. But there are other people who at least around
> the edges push the envelope, are gonna assess the field and think what
> are my chances of getting caught, and that\'s deterrence.\'[^748]
>
> Author: \'What do you think of Congress taking away random audit
> authority from the FEC? Do you think there is any need for it to be
> reintroduced?\'
>
> Donald McGahn: \'No, I don't think so. They are very expensive for
> everyone. I think the reports are pretty good as they are, and because
> we have elections at such a frequent rate here, I feel they are the
> ultimate corrector and so compared to your opponent and the watchdog
> groups, you're kept pretty honest on what you do. And when you look at
> the audits that have been conducted because there have been reporting
> irregularities, you may know some that have resulted in criminal
> conduct or something that was really serious but my recollection is
> that most of them involve stuff that is not the end of the world.
> Stuff that is wrong, against the regs, but is not really corrupting,
> just sloppiness, reporting violations, that sort of thing. It\'s not
> worth random audit. California still has that, they can randomly
> audit. It\'s a whole different process. California auditors tend to
> come from accounting backgrounds, other agencies, professional
> auditors. They don't really care about politics. And they do their job
> and they are polite and they actually send out a questionnaire. The
> questionnaire says, how did we do?\'
>
> Author: \'I think the FEC has that as well.\'
>
> Donald McGahn: \'I'm not sure they do. I've never seen one. I've never
> got to fill one out.\'
>
> Author: \'They do for ADR anyway.\'
>
> Donald McGahn: \'They may do for ADR. But I don't think they do for
> anything else. Whereas the FEC Counsels and auditors tend to be not
> what the California auditors are. They all seem to share this good
> government, fighting Watergate\....I see that time and time again. I
> walk in the room and they think they\'re fighting Richard Nixon all
> over again. They\'re not and that zeal sometimes gets in the way. I've
> heard horror stories of people who have been audited by the FEC. Rude
> treatment and they come and camp out in your office, weeks at a time,
> going through everything and they always want more paper and sometimes
> if you give the auditors what they want, they will still turn to an
> enforcement matter and the general counsels office say that is not
> good enough, you need this other kind of proof and I can't imagine
> that with a random authority.\'[^749]

The FEC has regularly recommended the reintroduction of random audit
authority, often choosing to do so in the form of a legislative
recommendation published in their annual report. However, this proposal
has not been made by the Commission since 1997. One might argue that
this policy change was consistent with the view already expressed by
Commissioner Mason, when he opined that making requests for resources or
powers unlikely to be granted by Congress is not only a fruitless
exercise but does little for FEC/Congressional relations.

However, the difficulties the FEC experienced with Congress in the early
1980s were more the product of philosophical zeal and less about trying
to micro-manage FEC enforcement. Instead of trying to shape a more
desirable enforcement ethos, Republicans attempted to abolish the
Commission. Commissioner Thomas commented:

> Commissioner Thomas: \'When the Republican tidal wave in 1980 swept
> through Washington, there was a ground swell of strength for the
> Republicans. For a couple of years the abolishment of the FEC was in
> the Party platform and then you sort of saw a shift away.\'[^750]

Republicans won control of the Senate in 1980 and Ronald Reagan, who had
urged President Ford not to reconstitute the FEC after the *Buckley*
decision, became the new incumbent in the White House.[^751] Although
the low 1980 (\$8.1m) FEC appropriation may have had more to do with a
reduced workload brought about by the 1979 amendments to the FECA,
budget cuts in the following two years appeared politically
motivated.[^752] In a proposal made before the Senate Appropriations
Committee, Senator Ted Stevens (R-AK) attempted to cut off funding to
the FEC though this was defeated in a 12-12-vote tally. A further
proposal to limit FEC funding to six months was more convincingly
defeated by the full Senate when it voted 65-31 against. Senator Roger
Jepsen (R-IA) then proposed the abolition of the FEC altogether but
Jepsen failed to muster the necessary support when the matter came
before the Senate Rules Committee.[^753] Wendell Ford (D-KY), the
minority leader on the Rules committee, defended the FEC against the
Republican attacks and was said to have engaged in some \'highly charged
discussions with Jepsen.\'[^754] However the Congressional disdain felt
towards the Commission was articulated through budget process.[^755] In
1981 the Commission was awarded \$2.5m less than requested and in 1982
it was cut again, receiving \$4.3m less than requested.

The next significant deterioration in FEC/Congressional relations came
about when Republicans won control of Congress in 1994. In FY 1995
Appropriations Chairman Bob Livingston (R-LA) attempted to reduce the
FEC appropriation by 10.3% or \$2,800,000 despite the Treasury, Postal
Service and General Government Appropriations committee budget only
being cut by 7/100\'s of 1% that year. As five months had already
elapsed in that fiscal year, the 10.3% cut would have equated to a 20%
reduction in operating funds for the remaining four months. However, as
the Senate opposed the cut, a \$1,458,000 rescission was agreed by House
and Senate conferees.[^756] Livingston had justified the cut after he
allegedly became frustrated at the Commission\'s unwillingness to
modernise and invest enough resources in computer technology.
Criticising the rescission, the Commission commented \'ironically, the
sanction for the perceived lack of investment in computers is a cut in
budget authority to make that investment-somewhat of a non
sequitur.\'[^757] Livingston\'s spokesperson, Quinn Hillyer, commented:

> \'We expect them not to ask for any more money until they put the
> money to good use instead of into a bureaucratic black hole. We don\'t
> want them hiring more people to sit around and twiddle their thumbs.
> There is no reason why they can\'t get the job done if they are
> organised and efficient. We will give them money for computers and not
> for personnel.\'[^758]

The starkest disparity between funds requested and those appropriated
occurred during FYs 95, 96 and 97. The worst of these years was FY 1995
when the Commission requested \$31,820,000 and received \$25,648,000.
Commissioner Lee Ann Elliott explained that computer expansion had been
suspended because of the FY 1995 rescission. She commented, \'we
literally have wires hanging out of the ceiling, waiting to be connected
to personal computers.\'[^759] Livingston was also successful in
reducing the agency budget in FY 1996 by 11% below that requested. In FY
1997, the Commission originally drafted a \$33,632,000 budget request
(20.10.95), but this was reduced after negotiation to \$30,887,000
(8.2.96). Despite that revision, Congress appropriated \$28,165,000 and
denied the supplemental request of \$1.7m to investigate the 1996
allegations.

Not only was Chairman Livingston instrumental in determining the level
of FEC appropriations, he was also the driving force behind directing
how those funds were spent. This practice is commonly referred to as
\'earmarking\' or \'ring-fencing.\' Contrary to the opinion often
expressed by the reform community, ring-fencing appropriations is
neither unusual nor necessarily born out of evil intent.[^760] However,
in the case of the FEC, ring-fencing has been employed to undermine the
agency\'s ability to enforce the law and has also been used to send
clear political messages to the Commissioners and the OGC. Substantial
amounts of the annual appropriation have been earmarked for
\'modernisation\' and computer upgrades.[^761] In FY 1996 \$1.5m was
earmarked for automated data processing (ADP); FY 1997 \$2.5m was
earmarked for a further ADP upgrade, in FY 1998 \$3.8m was earmarked for
computerisation and in FY 1999 \$4.4m was earmarked for
computerisation.[^762] Ring-fencing at the levels described
significantly reduces the amount of resources available for traditional
enforcement that requires personnel. Tina Vanbrakle alluded to the
inherent \'trade-off\' between I.T investment and enforcement.

> Tina VanBrakle: \'We're not like Mr Livingston thought, you know he
> kept saying that we were supposed to spend money on computer upgrades,
> and it's true, that we didn't sink a lot of money into computerisation
> because we wanted to enforce the law. Republicans and Democrats just
> don't like being regulated. That\'s basically the bottom line.\'[^763]

However the PWC (1999) audit found that the Data Systems Division had
expended more resources on ADP and other computer modernisation
initiatives during FYs 1996, 1997 and 1998 than had been earmarked by
Congress. Therefore the recurrent charge that the FEC was unwilling to
modernise was essentially a political strategy. Eliza Newlin Carney
commented in the *National Journal*:

> \'Livingston has long argued that the FEC dumps too much money into
> investigations and enforcement, and not enough into simply collecting
> and publicizing candidates\' contributions and spending records. One
> of the ways he\'s reined in what he regards as the FEC\'s overzealous
> enforcement efforts has been to explicitly require the agency to use
> large chunks of its budget only for computer modernization
> projects.\'[^764]

Jim Kolbe (R-AZ), Chairman of the FEC\'s appropriations subcommittee,
shared Livingston\'s view about the Commission\'s faulty enforcement
priorities:

> \'As it relates to the issue of compliance, my concern is that all of
> your energy seems to be dedicated to investigating possible campaign
> violations. I don\'t see, in the budget, initiatives that target
> prevention and deterrence of possible violations-educational ways in
> which we can keep it from happening in the first place.\'[^765]

This description of OGC enforcement bears little resemblance to the way
the agency functions. Firstly, the FEC is a responding agency, not an
initiating one. It responds to the complaints made by the public, or the
regulated community. The only compliance activity it carries out in the
absence of a complaint occurs through the scrutiny disclosure reports.
Secondly, all complaints have to meet strict criteria, being signed,
sworn and notarised and differentiating between fact and hearsay.
Thirdly, the OGC is proscribed from investigating any allegation without
the affirmative votes of four Commissioners. Such criticism supports the
thesis set out in the introduction that oversight has largely been
political, not rational.

Commissioner Thomas supported this explanation by asserting that there
was a clear Congressional policy not to allow OGC staffing to increase
during 1995, 1996 or 1997.[^766] In *Roll Call*, the Commissioner
explained how Bob Livingston had been \'lobbied pretty hard by some
folks in the conservative side of the aisle to come down hard on the
agency.\'[^767] Relations did not improve as the agency continued to ask
for additional funds and more enforcement staff. Frustrated at the
Congressional response to the supplemental request made to address the
1996 allegations, Commissioner Joan Aikens testified that, \'the agency
needed investigators, attorneys, auditors, systems analysts, and
clerical support staff to uncover the extent of potential
violations.\'[^768] Larry Noble commented that \'computers don\'t take
depositions and computers don\'t write interrogatories and computers
don\'t write reports.\'[^769] As staffing levels in OGC necessarily
affect enforcement performance, keeping the department under-staffed can
be a useful tool in hobbling enforcement. Trevor Potter noted that when
the number of complaints coming into the OGC outstrips capacity they are
then \'put it in Siberia, left on the enforcement docket to be worked
when an attorney becomes available.\'[^770] The agency then attracts
criticism because, as more cases remain on the enforcement docket
unworked, higher numbers are dismissed as \'stale\' under the
Enforcement Priority System (EPS). As was alluded to in chapter 2, it
tends to be the \'stale dismissals\' that generate more criticism than
the \'low priority\' ones. Ironically, Livingston\'s Appropriation
Committee staff criticised the OGC for unnecessary increases in
personnel, criticised the agency for concentrating its resources on
enforcement when its priority should have been disclosure and for
operating an enforcement priority system that dismisses too many cases
without investigation. The logic of such criticism was difficult to
justify in light of Livingston\'s fiscal and staffing policy towards the
Commission. Jackie Koszczuk commented in *Congressional Quarterly Weekly
Report* how Livingston \'had been key in denying FEC requests for more
attorneys and investigators\' quoting the Congressman as saying:

> \'I see no reason to increase their revenue, I think they have become
> a political organisation, they perpetuate their own base and they
> don\'t do the job they were intended to do. I just don't believe in
> these guys.\'[^771]

**[Chairman Livingston (R-LA) Authorises the 1995 Audit of the
Commission]{.underline}**

Hoping to generate more evidence to support of his views, Chairman
Livingston dispatched Appropriations Committee staffers to investigate
the FEC in February 1995.[^772] The investigation focused on
enforcement, disclosure and public records. The investigation was
carried out by six full-time staff and took three months to complete.
The rather brief 28-page report that followed concluded that the FEC had
effective internal budget controls and that its disclosure and audit
programmes were well managed. It also praised the establishment of an
\'Inspector General\'s Office\' that conducted various audits of agency
performance.

However, the report made three main criticisms. Firstly, it argued that
the agency\'s enforcement priority system allowed the agency to adjust
its workload through the manipulation of prosecutorial thresholds. The
criticism was that the agency increased its workload by lowering
compliance and audit-for-cause thresholds. The agency would therefore
simply create more violations thereby helping to justify its
\'unwarranted\' budget increases.[^773] Conversely, should the agency
become overwhelmed with allegations, it merely reduced that workload by
case dumping of low rated and stale MURs or by the manipulation of
compliance thresholds. Consequently the report described the Commission
as a \'self-licking ice-cream cone.\'[^774] This criticism was somewhat
puzzling, as the EPS had been introduced because the agency had
previously failed to differentiate between the serious and less serious
violations on its central enforcement docket (CED). The lack of
prioritisation coupled with resource constraints and limited staff in
the OGC meant that timeliness was invariably poor. As this poor
timeliness was often criticised in Congressional hearings, the EPS was
universally welcomed when it was introduced in 1993.

The report\'s second criticism was that the FEC was too slow in
modernising. The report said that plans to modernise tended to be
general in nature, summarised problem areas and failed to provide
details, milestones, or alternatives. The report asserted that the
Commission had been unwilling to expend sufficient resources from its
budget on computers, ADP and electronic filing. In a letter to *Roll
Call* Livingston quotes from the report:

> \'The FEC\'s defiant approach demonstrates an attitude which says,
> give us the money first and then we (the bureaucrats) will tell you
> (the elected Representatives) how we are going to spend it. Such
> practices are the exact opposite of how government is designed to
> work, and the very definition of tyranny.\'[^775]

Although these views served Livingston\'s political objectives, the
evidence failed to support them. The independent PWC audit concluded
that \'the FEC appears to have adhered to Congressional appropriations
report language instructions and \'category B, earmarks.\'[^776]
However, these criticisms were motivated by Livingston\'s frustration at
the Commission\'s refusal to divulge EPS weighting criteria.[^777] As
these factors determined whether a violation was likely to justify the
expenditure of enforcement resources, the criteria remained confidential
in order to prevent the regulated community \'playing the system\' and
rationalising their behaviour. Tina VanBrakle explained:

> Tina VanBrakle: \'I think they thought we were inefficient,
> particularly the Republicans, at this point in time, Bob Livingston,
> and Newt Gingrich, they thought we were inefficient, they thought we
> were just a typical bureaucracy. We kept on asking them for more
> money, more resources, particularly for OGC for enforcement. But
> because our EPS system, the way it's set up, and the criteria that\'s
> used, it's somewhat sensitive, Congress kept on asking us for more of
> that, we kept telling them \'no, we can't give that to you,\' they
> just didn't know what else to do. So they sent over the personal
> investigators to investigate the agency.\'[^778]

Trevor Potter argued that the politicisation and uncertainty surrounding
the agency\'s budget made it difficult to plan for the future. He
advocated the introduction of biennial budget authority, something the
FEC had favoured for many years. Although this would have reduced
budgetary uncertainty, Congress has argued that it creates \'lame-duck\'
committees in the second year.[^779] A *Roll Call* editorial referred to
the two-year budget cycle and opined that it would prevent Hill
appropriators from having \'their annual chance to bash the watchdog
agency.\'[^780] Although the report cited the agency\'s apparent
unwillingness or inability to modernise, the FEC\'s 1995 management plan
allocated \$972,000 for computerisation, a figure that was expended
despite the fiscal problems caused by the \$1,458,000 FY 1995
appropriation rescission.[^781]

The third criticism was directed at the agency\'s role in collating and
summarising campaign finance data. The agency was said to have assumed a
role of \'proactive disclosure that enabled it to make a selective
analysis of the American political process.\'[^782] The report expressed
concern that the Commission had an \'immense responsibility to insure
that each release was carried out in an unbiased and even-handed
manner.\'[^783] Livingston\'s hostility towards the Commission again
became manifest when in 1996 he attempted to cut staffing in the Press
Office from 5 to 2.[^784] FY 1996 appropriation report language read:

> \'While FEC has a statutory responsibility to respond to press
> enquiries, the Committee feels 5 full-time employees for an
> organisation the FEC\'s size is excessive.\'[^785]

The appropriation report opined that as the FEC had failed to measure
\'voluntary compliance,\' it was unable to measure the Press Office\'s
impact of that objective, therefore the cut was justified. Finally, the
report suggested that Press Office staff were no longer required because
of the launch of the FEC\'s World Wide Web \'home page.\'[^786] Although
this action was simply part of a wider attack on the FEC, it was a
little surprising that Livingston and his auditors had turned their
attention to the Press Office. Firstly, the Press Office reports facts
and does not \'editorialise\' or use value-laden or emotive language.
Secondly, as Press Officer Ron Harris noted, the Press Office is not a
\'flak office,\' designed to generate positive copy about the Commission
or to rebut Congressional or media criticism. Commissioner Elliott
supported this view when she commented \'our Press Office primarily
responds to questions.\' \'They don\'t run a PR programme.\'[^787] One
might argue that as Livingston believed the Commission to be partisan
and populated by liberals, he objected to using taxpayers\' dollars to
propagate anti-conservative views. Additionally, as the Press Office
turns raw campaign finance data into meaningful, easily understandable
information, it has a role in transforming disclosure theory into
reality. One might argue that some incumbents preferred the American
public to analyse the data for themselves, something that even the
professional can find difficult and time consuming.

The release of the Appropriations Committee report was never officially
sanctioned, though a few copies were circulated in Washington much to
Livingston\'s annoyance. Tina VanBrakle commented:

> Tina VanBrakle: \'Everyone at this agency was very accommodating, gave
> them records, everything that we could possibly have and that report,
> I don't think it gave them the ammunition they were looking
> for.\'[^788]

Livingston hoped that his staffers would discover evidence of
partisanship. When no such evidence emerged, appropriations staffers
chose to describe the report findings as merely a \'survey\' and not an
\'investigation.\'[^789] As a Congressional committee and not the GAO
had conducted the investigation, the FEC had no opportunity for
meaningful input and was not entitled to respond to its conclusions. The
investigation\'s *ad hoc* mandate and the auditors\' ignorance of the
agency, its processes and the law, led one FEC source to comment \'this
is a private plumbers\' unit doing work that the GAO should be doing out
in the open.\' Commenting further, \'It\'s an abuse of power and a clear
conflict of interest.\'[^790] The investigation was another symptom of
Livingston\'s desire to hobble the agency. Democracy 21 noted how
Livingston and his supporters used the report as ammunition in their
attempts to reduce and micro-manage the FEC budget.[^791] The report was
political, not rational or managerial. One *Roll Call* headline read,
\"Appropriations Staff Probe of FEC Mirrors Livingston\'s Case Against
Election Agency.\"[^792] The report has been remembered more for the
\'self-licking ice-cream cone\' metaphor and less for its content.

**[Livingston Authorises the Return of the Auditors 1998]{.underline}**

In a further attempt to undermine the Commission, Chairman Livingston
authorised a GAO audit in 1997. Unlike the \'survey\' conducted by
Livingston\'s staffers, this audit was awarded on the basis of a
competitive bid. This resulted in the GAO granting the \$750,000
contract to PricewaterhouseCoopers LLP. PWC began their work in June
1998 and submitted their 186-page report to Congress, the GAO and the
Commission January 15 1999. PWC conducted a comprehensive and
professional investigation that avoided the crude political criticisms
contained in the 1995 report. The PWC audit focused on process
performance and management practices. After consideration of the report,
the Commission responded by saying \'the FEC commends PWC for conducting
a fair audit/management review and for attempting to understand the
complex nature of the Commission\'s purpose and work.\'[^793] Alluding
to the report, Commissioners Wold and Thomas filed a joint statement
saying:

> \'The FEC is a competently managed organisation with a skilled and
> motivated staff, that executes disclosure and compliance without
> partisan bias and that has a high degree of customer satisfaction with
> our products and services.\'[^794]

The report found a number of agency \'strengths\' and \'shortcomings.\'
The strengths included:

1.  A strong organisational focus on facilitating voluntary compliance
    within the filing community to create an accurate public record of
    campaign finances.

2.  The filing community was generally satisfied with FEC products and
    services.

3.  Productivity had increased in the processing review and
    dissemination of campaign finance data in the face of increasing
    workloads.

4.  Confidentiality of potential and existing compliance matters are
    maintained throughout report review, referral, audit and enforcement
    processes.

5.  Disclosure and enforcement activities are executed without partisan
    bias.[^795]

Shortcomings included:

1.  Campaign finance report disclosure and review relies on an
    antiquated paper-based and manual coding, entry, verification, and
    clarification process.[^796]

2.  FEC organisational units are compartmentalised, which leads to
    diminished communication, collaboration and innovation.[^797]

3.  Because of limited staff resources and increasing case complexity,
    current volumes of enforcement cases appear to exceed FEC
    disposition capacity.

4.  The lack of a Case Management System.[^798]

The PWC audit was universally seen as unbiased and provided an
invaluable template for positive change. Commissioner Thomas also
thought that the audit had aided the FEC/Congressional relationship as
PWC concluded that the agency exercised it disclosure and compliance
duties without partisan bias.[^799] However, the report was the product
of a disingenuous motivation. Congressmen Maloney (D-CT) commented:

> \'The Majority asked for this audit because they thought it would
> embarrass the FEC. Instead, it embarrasses the Republican leadership
> by exposing as groundless their continued attacks on the agency\'s
> integrity.\'[^800]

Congressional attacks did little to reduce the \'siege mentality\'
present in FEC organisational culture.[^801] Furthermore the FEC\'s
appropriation committee ensured that the \$750,000 PWC fee was funded
from the Commission\'s FY 1998 budget.[^802] In addition to this
financial burden, the agency experienced disruption for a number of
months as staff explained institutional processes, legal issues and
assisted the auditors in other ways. The audit has also had macro,
long-term consequences for the Commission\'s workload. The FEC keep
Congress regularly appraised of its progress in implementing the 21
recommendations and the numerous \'improvement opportunities\' made by
PWC.[^803]

Although some recommendations involve significant resource issues,
Congress may respond positively to these needs as none of the
recommendations advocate politically unpopular changes like OGC staff
increases or the awarding of substantive new powers.[^804] Not only has
the audit increased the work required in preparation for budget and
oversight hearings, the Commission also has to draft responses to
questions submitted by Congressmen on the minutiae of the report\'s
implementation. Answering such \'questions for the record\' has involved
a considerable amount of technical research. On a more practical level,
the report has affected the organisation, deployment and workload of
other staff. Commissioner Wold explained how nine task forces and
working groups had been formed in order to implement the PWC
recommendations and other initiatives (administrative fines and ADR).
Commissioner McDonald testified how the PWC recommendations had resulted
in the need for an additional executive assistant in Commissioner
Offices:

> \'The amount of time it is taking each one of the executive assistants
> out of our Offices to work in each of these areas, just the activities
> in Pricewaterhouse alone, is unbelievable.\'[^805]

Despite the added workload, Congress and the OMB refused to grant
Commissioners the necessary staff required to administer the PWC
changes. Chairman Kolbe (R-AZ) asked Commissioner McDonald why the OMB
had not supported his request for an additional executive
assistant.[^806] Commissioner McDonald replied:

> \'Well, I think the primary reason was that they felt like they would
> okay the positions, but they would not okay the money which, in
> essence, kind of puts us in a blind, needless to say.\' (Clerk\'s
> note.-The witness later clarified this to read: \'OMB did not approve
> of either the positions or the money but agreed the Commission could
> ask Congress for them. OMB did not give any rationale beyond
> disagreeing that the Commissioners need an additional executive
> assistant to properly manage the agency.\'[^807]

One might conclude that whilst the PWC (1999) audit was a success in
terms of its managerialist remit, it was a report that deliberately
avoided discussing the political realities and controversies that impact
on agency performance. The apolitical nature of the report meant that it
was well received by both Parties in Congress and was equally well
received by the FEC, who saw it as an opportunity to validate their long
held claims of impartiality and confidentiality. However, this should
not negate the report\'s validity in supporting an argument which
asserts that audits have been used to prove political points and that
the PWC audit should be seen in the wider context of the Congressional
desire to control, micro-manage and bully the agency.

The final control strategy employed by Congress during the mid 1990s was
to target the FEC\'s statutory officers for removal. This measure was
aimed at the general counsel, Larry Noble, but was equally applicable to
Staff Director, John Surina. Under existing arrangements, both Officers
enjoyed indefinite tenure and could only be removed by four affirmative
Commissioner votes. However, in 1998 legislative attempts were made in
the House and Senate to place term limits on the agency\'s most senior
bureaucrats through a clause contained in the FY 1999 Treasury and
General Government spending bill. Both officers would serve four-year
terms and four affirmative Commissioner votes would be required to
secure reappointment for each additional term. If enacted, this measure
would have become effective in 1999. In the House, the rider was
suggested by conservative Bill Thomas (R-CA) and introduced by Bob
Livingston (R-LA). The measure was introduced in the Senate by Mitch
McConnell (R-KY), another conservative and staunch critic of the FEC.
Although the provision contained in the House bill was removed because
it broke rules prohibiting legislating on an appropriations bill, the
Senate voted 45-54 against tabling (killing) the McConnell
amendment.[^808] Senator Carl Levin (D-MI) objected to the McConnell
rider and threatened to delay the bill with a number of lengthy
amendments of his own.[^809] Majority Leader Trent Lott (R-MS) allegedly
commented \'if the Democrats don\'t want the Treasury Department and the
White House funded, what do I care?\'[^810] Democrats argued that the
McConnell amendment was politically motivated, was an effort to
influence the actions of the FEC, was designed to make officials fearful
of losing their jobs and was specifically directed at the current
general counsel, Larry Noble. Bill Thomas denied this, saying \'this is
basically a good government measure.\' Similarly Livingston said \'this
is not about that guy raising so much hell at the FEC, I forget his
name, starts with an N.\'[^811] McConnell was somewhat more candid when
he said of Noble, \'he had not demonstrated great bipartisanship in the
past.\'[^812] However, the amendment was a crude attempt to remove a
bureaucrat who was unpopular with the Republican leadership. Fred
Wertheimer described the attempted removal of Larry Noble, \'as
intimidation and bullying tactics.\'[^813] Larry Noble was asked about
the Congressional attempts to remove him.

> \'Sure it concerns me, and not just personally. I\'m concerned about
> Congress changing the nature of this job. They are trying to send a
> message that if they don\'t like the advice the general counsel gives,
> they\'ll get rid of him. I don\'t think anyone could function
> effectively under those circumstances.\'[^814]

Despite being reintroduced on a number of occasions throughout 1998, the
measure failed to be enacted for a number of reasons. Firstly, most
Democrats opposed it and President Clinton wrote to Senate Minority
Leader Tom Daschle (D-SD) saying that the McConnell amendment was an
\'indefensible step to weaken our nation\'s election laws.\'[^815]
Secondly, continued partisan squabbles over the amendment would have
further delayed the passage of legislation. Katherine Seelye opined in
the *New York Times* that with only five weeks remaining before the
adjournment, the House and Senate had only sent one of thirteen bills to
the President for his signature. Thirdly, there was concern that if
McConnell persisted with his attempts to remove Noble it would have
exacerbated tensions between the Republican Party\'s conservative and
moderate wings. Finally, attempting to weaken the Commission might have
undermined Republican efforts in appointing an independent counsel to
investigate Vice President Gore\'s 1996 campaign finance
practices.[^816] The long-term interests of the Republican Party were
served by encouraging ethical investigations not by discouraging them.
However, despite the measure\'s failure, the attempt was a *de facto*
success in that it sent a powerful message to both statutory officers.
Should the General Counsel or Staff Director anger Congress in the
future, the attacks on their security of tenure might resume.[^817]
Consequently, Staff Director John Surina left to join the Department of
Agriculture in July 1998 and Larry Noble, General Counsel since 1987,
resigned eighteen months later to become Executive Director of the
Center for Responsive Politics. Tina VanBrakle supported the assertion
that the McConnell amendment was pivotal in affecting the decisions of
both Statutory Officers to resign from the Commission. She commented:

> Tina VanBrakle: \'We lost a very good Staff Director at the time
> because he too was a Statutory Officer, like Larry and he too saw the
> writing on the wall. And he thought, well, I'm not going to be term
> limited, I'm going to get out of here. He ended up leaving and he made
> more money, he's happy, but err, we lost a lot of key people over the
> past few years.\'[^818]

Historically, Congress has used fiscal strategies to exert its power
over FEC enforcement. The modesty of FEC budget, ring-fencing of
appropriations and restricting the recruitment of OGC staff have all
limited enforcement capacity.[^819] However, budget cutting, dispatching
auditors to \'investigate\' the agency, and targeting particular
individuals for removal was something unique to the mid and late 1990s.
These more assertive methods of Congressional control were something
designed to punish the agency for becoming a more vigorous and effective
enforcer of the law. The FEC, public interest advocates and journalists
have also supported this view.[^820] For example, the implementation of
the Enforcement Priority System (EPS) in 1993 led to an increased level
of financial penalties for those violating the statute.

[Table 4.3: Civil Penalties Levied by FEC]{.underline}

+-------------------------+---------------------+----------------------+
| Calendar Year           | Matters Conciliated | Total Civil          |
|                         |                     | Penalties            |
+-------------------------+---------------------+----------------------+
| 1986                    | 174                 | \$289,485.00         |
|                         |                     |                      |
| 1987                    | 171                 | \$249,710.00         |
|                         |                     |                      |
| 1988                    | 142                 | \$332,383.00         |
|                         |                     |                      |
| 1989                    | 177                 | \$362,746.94         |
|                         |                     |                      |
| 1990                    | 138                 | \$274,752.00         |
|                         |                     |                      |
| 1991                    | 262                 | \$534, 110.00        |
|                         |                     |                      |
| 1992                    | 99                  | \$255,128.00         |
|                         |                     |                      |
| 1993                    | 86                  | \$596,099.00         |
|                         |                     |                      |
| 1994                    | 113                 | \$1,733,754.00       |
+-------------------------+---------------------+----------------------+

Source: FEC Press Release December 30, 1994

Larry Noble opined in *The Hill* that fines would grow as the Commission
continued to dispose of minor cases through EPS and focus its resources
on more serious violations.[^821] This rise was symptomatic of a more
assertive Commission and coincided with the 1994 Republican take-over of
the House and Senate. Yet as Bob Livingston and the Republican
leadership continued to believe that the Commission was biased against
conservative causes, the Republican leadership remained unenthusiastic
about increased financial penalties. Livingston\'s attitude was alluded
to in *The Hill* when it opined that \'he had not examined the fines
assessed this year, but indicated that a record amount would not
necessarily temper his criticism.[^822] Livingston elaborated by saying:

> \'I don\'t think the total amount of fines is a factor one way or the
> other. The question is whether the FEC is being expedient and fair.
> Those are the important issues.\'[^823]

Two of Livingston\'s most frequent criticisms of the FEC were its
inability to modernise and its inability to punish violators of the law.
Yet the EPS was a modernisation, in that it allocated scarce resources
to the most serious cases and did so in a non-partisan way.
Additionally, the increased level of fines demonstrated that the
Commission was attempting to increase the credibility of deterrence.
Although the Commission was not admonished for rise in civil penalties,
it was not praised for it either. However other facets of the
Commission\'s regulatory behaviour particularly angered Congress.

Perhaps the most unpopular action by the Commission was the 1994
drafting of new rules prohibiting incumbents from converting excess
campaign contributions to \'personal use.\' Although Congress had
prohibited the conversion of campaign contributions to personal use in
1979, \'personal use\' was not defined and the prohibition did not to
apply to incumbents who held office on, or before, January 8 1980. This
was the so-called grandfather clause, which meant that the Commission
was rarely asked to rule on the issue. After criticism from the press
and public interest advocates, the 1989 Ethics Reform Act was passed and
the grandfather clause was repealed. Although this extended the personal
use prohibition to House and Senate members, \'personal use\' was still
not defined under the Act.[^824] Larry Noble described how historically
the Commission had taken a broad view on what might be defined as
\'campaign-related expenditure.\' He alluded to the fact that the
Commission wished to avoid substituting its judgement for the judgement
of the candidate.[^825] There was a lack of consensus on what
politicians should and should not spend political donations on. Some had
advocated a *laissez-faire* approach by allowing candidates to spend
contributions as they wished as long as it was disclosed. Others, who
favoured the use of regulatory power, suggested that those campaigning
for office should only spend political contributions on narrowly defined
electioneering activities. Many Washington journalists described how
Congressmen had used campaign contributions to pay for country club
memberships, pleasure trips, theatre outings, sporting events and
vacations, rent, family members\' hotel rooms, leasing or buying cars,
clothes, salaries and meals.[^826] One might find it difficult to accept
that these expenditures were within boundaries of legitimate
electioneering costs. Kemper argued that politicians were funding lavish
personal lifestyles through the use of campaign contributions[^827] and
Democracy 21 described the practice \'as ingrained in Congressional
culture.\'[^828] However, Larry Noble alluded to the difficulty in
drafting a \'personal use\' rule that encompassed every eventuality. He
opined that there were \'innumerable hypotheticals.\' For example, in a
panel discussion he referred to the type of questions that were raised
by the regulated community concerning personal use. Might political
donations be used to purchase a modest car but not a luxury one, a Yugo
but not a Lincoln Continental? Another asked, if after a stressful
campaign, the candidate needed psychiatric treatment, might this be paid
for by political contributions?[^829] Undeterred by the hypothetical,
the Commission drafted new personal use rules that became effective
April 5 1995.[^830] Whilst the Commission failed to agree whether a
salary might be paid to candidates, the Commission promulgated the
following rules:

> \'Expenses that would exist regardless of an individual\'s campaign
> for Federal office or duties as a Federal officeholder are deemed
> personal. Examples of such personal expenditures might include:
> household expenses, funeral expenses, tuition payments, entertainment
> expenses and membership dues at clubs.\'[^831]

Joshua Shenk described how Congress was outraged by the personal use
rules promulgated by the Commission.[^832] Trevor Potter, like many
others, opined that the FY 1995 budget rescission was a direct
punishment for proceeding with the new personal use rules.[^833]
Congressman Barney Frank (D-MA) referred to the \'attacks\' on the
Commission over personal use, describing them as \'entirely political\'
and saying that the Commission \'pisses off a lot of people.\'[^834] Bob
Livingston (R-LA) opposed the FEC rules governing personal use.
Livingston commented:

> \'The FEC currently has proposed microscopic rules on the use of
> campaign funds. Every Congressman and every Senator is concerned about
> that. We don\'t think the FEC should be micro-managing our campaigns.
> Broad parameters are sufficient.\'[^835]

Livingston clearly advocated Cain and Lochner\'s democratic model of
regulation on the personal use issue. He suggested that the FEC should
disclose campaign-spending records and \'let the voting electorate
determine whether or not that was wise or just or proper.\'[^836]
Livingston also argued that the Commission had continued to resist
computer modernisation, was not adequately enforcing the law against
egregious violators[^837] and was \'unable to address the agenda
currently on its plate.\'[^838] Despite denying that the FY 1995 funding
rescission was anything to do with personal-use rules, Livingston
inferred a connection between the two on several occasions.[^839] He
commented:

> \'Instead of micro-managed campaigns, the FEC should prosecute
> violators. And given that the FEC doesn\'t have the resources to do
> that, it\'s ridiculous to expect that they would. Thus, there should
> be full disclosure with penalties for perjury.\'[^840]

In the FY 1995 FEC authorization hearing Livingston commented:

> \'While the Federal Election Commission complains about not having
> enough resources to handle its workload, and I think they can make a
> good case in many areas, it has initiated a rule-making on how Federal
> candidates can spend campaign funds. It would appear that the FEC is
> actively searching for more things to go out and regulate.\'[^841]

Livingston continued to associate budgetary issues with the personal use
rules. For example, in a 1994 panel discussion he commented:

> \'Frankly there is a strong justification for the budget increase,
> provided the FEC maintains its autonomy. They need the resources-not
> to run campaigns, not to administer debates, but to ensure the
> fairness of elections.\'[^842]

As he viewed the personal use rules as \'running campaigns,\' the
message was clear, the promulgation of new regulations governing
\'personal use\' was to be discouraged as an undesirable regulatory
interference. Should the Commission choose to proceed with the new
rules, fiscal consequences might follow. FEC Director of Congressional
Affairs commented:

> Tina VanBrakle: \'He thought we were too vigorous in enforcing the
> law, we had promulgated new regulations dealing with the personal use
> of campaign funds. He said that was not the reason why he wanted to
> cut our budget but basically he thought we went too far.\'[^843]

Whilst the new personal use rules damaged FEC/Congressional relations,
the Commission\'s litigation against the Christian Coalition, Christian
Action Network and GOPAC also proved equally unpopular with the
Republican leadership. The FEC filed suit against GOPAC in 1994 as it
had not registered as a political committee, had failed to disclose its
aid to political candidates and had refused to pay a \$150,000
fine.[^844] Despite taking similar action against socially liberal
groups in the past, the Republican leadership viewed the decision to
file suit against these groups as unjustified and biased. Chairman of
GOPAC, Rep. Newt Gingrich (R-GA), the minority whip in 1994, referred to
the FEC at the time as, \'nuts...mindlessly bureaucratic....an agency
that\'s irrelevant and dangerous.\'[^845] Gingrich also described the
FEC lawsuit against GOPAC as \'an outrageous power grab.\'[^846]
Republican criticism of FEC litigation against conservative groups
continued during 1997. Congressman Robert B. Alderholt (R-AL) criticised
FEC litigation against the Christian Coalition when he commented:

> \'On July 30th of this past year, of course, which was an election
> year, the FEC filed a lawsuit in the U.S. District Court in the
> District of Columbia against the Christian Coalition. The charges were
> that the Christian Coalition engaged in expressed advocacy through
> their voter guides. At the same time, the FEC did not target other
> groups that tended to support Democrat candidates and which have had
> similar voter guides and engaged in identical activities. If anything,
> there were some other groups that could be argued went further than
> the Christian Coalition. I think the effect of singling out one group
> that happened to be socially conservative in a sea of more socially
> liberal groups engaged in the same activity had a very chilling
> effect.\'[^847]

Commissioner Thomas immediately rebutted this criticism when he alluded
to FEC litigation against socially liberal groups like Survival
Education Fund, the National Organisation for Woman and the
American-AFSCME union.[^848] However the Republican leadership viewed
their treatment by the FEC as unjust though not entirely surprising
given that they viewed the agency to be populated by liberals.

This discussion has demonstrated that that Congress has attempted to
micro-manage FEC enforcement in a number of ways. Yet Congress has a
legitimate right through its oversight role to exercise direction and
control. However, what might be difficult to justify was the overly
political nature of that micro-management in a policy area that directly
affected incumbents. President of Democracy 21 commented:

> Fred Wertheimer: \'They only understand one thing, that\'s if someone
> is bothering them. As long as they are not being bothered and their
> friends are not being bothered, they are not going to pay any
> attention. They just won't.\'[^849]

Congress sought to bully and punish the agency and its key staffers for
enforcing the law. The personal use rules and the litigation against
high-profile conservative groups brought FEC/Congressional relations to
an all-time low. In a \'budget crisis backgrounder\' written by the FEC
in FY 1995, the Commission referred to the punitive action taken by
Congress against the Commission and noted how this was brought about by
more vigorous enforcement and the introduction of personal use rules.
When referring to the FY 1995 budget rescission the FEC statement
opined:

> \'More specifically, this appears to be retribution for a more
> aggressive enforcement programme and a reaction to our rules defining
> that which constitutes illegal personal use of campaign funds. Those
> who would prefer a law that is essentially disclosure-based without
> limitations on the sources and amounts of campaign money can make a
> reasoned argument for that approach. However, the proper forum for any
> such debate is to propose substantive amendment to the law, not to
> intimidate the agency away from enforcement behind the veil of budget
> cuts to combat alleged bureaucratic inefficiencies.\'[^850]

More recently, FEC/Congressional relations have improved significantly.
Keller opined in *Roll Call* that \'everyone at the FEC\'s downtown
headquarters seems to be enjoying the Commission\'s cozier relationship
with Congress.\'[^851] Although part of the reason for that improvement
is that key Congressional opponents of the FEC are no longer in office,
the main reason is that the Commission has become less adversarial in
its enforcement ethos and has become more acquiescent towards Congress.
Congress has in fact been successful in changing enforcement policy
without amending the FECA. A number of interviewees expressed their
concern about the congenial relationship between regulator and regulated
and alluded to the more deregulatory attitude at the Commission. Larry
Noble was asked about the Congressional efforts to remove him:

> Author: \'Were these attempts by Mitch McConnell, and Bob Livingston
> an aberration, or has the nature of Congressional relations with the
> FEC always been adversarial?\'
>
> Larry Noble: \'It was an aberration to the extent of how personal it
> got. That was very unusual, that they focused on me as the root of all
> evil at the FEC. But it was not an aberration in terms of an
> adversarial relationship. The FEC has always had an adversarial
> relationship to some extent with Congress. And I think the greater the
> adversarial relationship was a reflection that the FEC was trying to
> do its job. Now that the relationship is not that adversarial, is what
> I\'m worried about. As a matter of fact there was an article in *Roll
> Call,* the Capitol Hill magazine, in one of the two, last couple of
> weeks, that talked about how well the FEC is getting along with
> Congress. My reaction to that was it\'s not doing its job. You don\'t
> want the people you regulate\...you want them to respect you. You want
> them to think that you\'re fair, but you don\'t necessarily want them
> to think that you\'re doing a wonderful job. Doing a wonderful job to
> anybody in the regulated community means that you\'re leaving me
> alone.\'[^852]

Tina VanBrakle was asked about the concern alluded to by Larry Noble:

> Author: \'How would you respond to people who would say that it is a
> bad thing when the FEC starts to get a good relationship with
> Congress, or a harmonious\.....someone told me today that it's almost
> like a \'love-fest\' at the moment.\'
>
> Tina VanBrakle: \'There have been\...I'd like to know who said that!
> There have been occasions that have been like a \'love-fest.\' I think
> that maybe they would say, oh, maybe they've been captured, they're a
> captured organisation, they're captured by the very group that created
> them. You know, the regulators, because they control our budget,
> because they control the nomination process of Commissioners.\'[^853]

When Commissioner Thomas was asked about FEC/Congressional relations and
the change in enforcement ethos he commented:

> Commissioner Thomas: \'But there was no doubt, that that was a bit of
> pressure on our General Council to stop pushing enforcing the law
> against groups like Christian Coalition, Christian Action Network, so
> that\'s how I would paint the time frame of FEC conflict with
> Congress. Now, because we have new Commissioners in place, and we have
> basically, in many respects issues where there will not be
> enforcement, relations with the Republican-controlled Congress,
> surprise, surprise are better. And I think that the folks who don't
> want much the agency to have a vigorous enforcement role, much like
> the statute as it is written, are probably fairly content right now.
> They've now got an FEC that has a disinclination to get four votes on
> the big issues.\'[^854]

Trevor Potter was asked:

> Author: \'Why do you think we have now got this much better
> relationship between the FEC and Congress? For example, historically
> you could argue that it\'s good when the FEC doesn\'t have a good
> relationship with Congress because it means they are doing their
> job.\'
>
> Trevor Potter: \'You could make that argument, yes.\'
>
> Author: \'And now I seem to see the position with the Commission
> changing, perhaps away from enforcement and more towards enforcing
> disclosure, rather than a different kind of...\'
>
> Trevor Potter: \'I think that is correct. I think the Commission is
> more conciliatory towards Congress. Congress has taken a greater
> interest in the Commission and has people on it who are there
> precisely because their Congressional sponsors worked hard to put them
> there. It\'s all a matter of public record. So I think the Commission
> is being less adversarial, and Congress has greater comfort in the
> Commission because they came through a process that had more
> Congressional involvement. Also, there are some specific personality
> changes, Congressmen Livingston, who developed a great dislike for the
> Commission and was the point person against the Commission, is not in
> Congress.\'[^855]

As one of the new appointees, Commissioner Mason viewed the more
cautionary enforcement ethos as a positive thing:

> Author: \'How would you explain the new more harmonious relationship
> between the FEC and Congress?\'
>
> Commissioner Mason: \'How would I explain it? Part of it is just the
> change in personnel because of this heavy Congressional role I talk
> about..it characterised, particularly the more recent appointments,
> the people on Capitol Hill have a higher degree of confidence in the
> individual Commissioners to make reasonable decisions. Part of it has
> to do with the determination of several of us to do all we can to
> foster good relations with Congress. I was a Congressional staffer,
> Commissioner Sandstrom was, Commissioner Wold was a legislative
> staffer in the California state legislature, not immediately preceding
> his appointment but was an experience that shaped his understanding of
> how it operates and so on. And so we understand what it is that
> motivates members and staff and we try to what extent we can to
> anticipate issues and address them. So part of it is attentiveness to
> the problem and not pound away at unproductive approaches and part of
> it is frankly change in enforcement policy. If the Commission had
> continued to pursue cases like Christian Coalition in a vigorous way,
> people on the floor would continue to be upset.\'[^856]

In *Roll Call*, Commissioner Mason alluded to the inherent tension
between the FEC and Congress. He said \'it\'s always going to be
difficult because we regulate Members of Congress and their campaigns.\'
However, he continued by saying that for that reason it is especially
important to be \'sensitive to the realities of practising politics and
that Congress understands that we are trying to be sensitive in that
regard.\'[^857] This comment was clearly suggestive of a particular kind
of enforcement ethos. As was discussed in chapter 3, litigation policy
has changed under the guidance of more recent appointees, and the
Commission appears determined not to pursue action likely to bring about
Congressional sanctions. Congress has generally been receptive to the
administrative fines programme and ADR, yet both only deal with *malum
prohibitum* violations and neither seriously challenge Congressional
interests. Joan Claybrook, president of Public Citizen Inc, opined that
the \'public thinks the FEC is an enforcement agency and therefore it
provides Congress with great cover by its existence.\'[^858]
Additionally, a *Christian Science Monitor* editorial commented:

> \'The FEC is a good government tool that reassures voters that
> somebody\'s keeping an eye out for funny business.\'[^859]

Congress wishes the FEC to regulate and to continue to exist. Yet when
that regulation becomes too vigorous, expansive or detrimental to their
interests, Congress reins in the agency in the ways described.

**[Office of Management and Budget (OMB)]{.underline}**

Although Congress has been the most active participant in micro-managing
enforcement, the executive, through the Office of Management and Budget
(OMB), has also played a significant part in undermining agency
performance. Despite the small size of the FEC budget and the
conservative nature of its budget requests, the OMB has rarely supported
its financial requirements. FEC budget negotiations occur in the
following way. Firstly, the agency assesses its budgetary needs. In
order to make a valid assessment, the agency considers the level of
financial activity that occurred in the previous election cycle and also
whether it is a presidential election year. Additionally, they consider
historical data contained in their Management Information System (MIS)
which aids them in making a more accurate projection of their fiscal
requirements.[^860] When a figure has been established, the budget
request is submitted to the OMB. Once this has been considered, the OMB
will issue a \'passback.\' This passback is the amount the executive is
willing to support prior to the agency\'s budget submission to Congress.
If the FEC budget committee view the OMB passback as unrealistic, they
negotiate with an official at the OMB called the Programme Associate
Director or PAD. In order to support these negotiations, the FEC
Chairman may write to the Director of OMB setting out the justification
for a higher passback. Whilst the Commission has preferred to secure
agreement with the OMB because Congress tends to be more amenable to
granting the full request when a consensus prevails, the FEC is not
mandated to defer to the OMB. As the FEC is an independent regulatory
Commission, it has concurrent submission authority.[^861] Therefore, if
agreement cannot be reached with OMB and the passback remains too low,
the FEC may submit its own figure and appeal directly to Congress. On
occasions, despite the lack of support from OMB, Congress has been
willing to appropriate funds in excess of the OMB passback. This
scenario is more likely when the administration makes uniform budget
policies, awarding across the board figures without considering the
nature and workload of particular agencies. Tina VanBrakle was
interviewed about budgetary negotiations and the interplay between
agency, OMB and Congress:

> Author: \'Going back to your earlier point about the administration, I
> have noted that the Center for Responsive Politics, and Elizabeth
> Hedlund have also kind of commented that the administration have not
> always been supportive of the FEC in terms of their budget. For
> example in 1993 and 1995 the FEC were encouraged to cut their budget
> request in return for administration support.\'
>
> Tina VanBrakle: \'I\'ll tell you the way it works. We submit a budget
> for 40 million dollars, they come back and say we can't give you 40
> million dollars, we can give you 38 million dollars. It's called an
> OMB passback figure. The Congress, we strive to come to an agreement
> with OMB. It's better if you can go to Congress and say we are all in
> agreement here, this is a figure the OMB agreed on. We can live with
> this, and so on, and so forth. We did that over the years, but often
> we asked for a larger amount and through negotiation with OMB we'd
> drop it back, we appealed, and we would come out with a lesser
> passback figure. Congress would sometimes give us more than that
> because we would argue, and so on and so forth. But Congress doesn't
> like to give you more than the administration sets out for you. They
> like to start out with the administration\'s figure. Sometimes in the
> past, even when the Republicans didn't like us for the past few years,
> we managed to convince Congress to give us a little bit more. But it's
> a battle, an uphill struggle when the administration doesn't give you
> an adequate figure. This year, 2002, 2003, they didn't even give us
> current services level. The administration gave us flat figure,
> certain percentage increase for agencies, not looking at what they
> did. So the OMB did not even recognise and give us current services
> level. We successfully at this point, we are still working on the
> appropriations for 2002, but I think we have convinced our
> appropriators, particularly the House, to give us a decent figure. Now
> the Senate of course gave us a decent figure, but Mr. McConnell had a
> two million-dollar-earmark. He wanted the earmark for 2002, 2003, for
> election administration. But that\'s another story and I think we are
> going to be able to work it out.\'
>
> Author: \'It's just that most of the literature seems to be focused on
> Congress and they don't seem to adequately cover the relationship
> between the FEC and the administration. Especially, in the light of..
> you are kind of starting at a disadvantage straight away in your
> relationship with Congress in negotiating the budget if you're not
> getting the support from the administration\...they are cutting you at
> the knees before you start!\'
>
> Tina VanBrakle: \'Exactly! And then it's more of a struggle to
> convince Congress and we have\...I think you'll see by looking at this
> chart, with all the figures. We have been able to convince Congress to
> give us a better figure in many situations, but it is a struggle when
> it comes to our budget. Particularly if the administration cuts us
> back early.\'[^862]

The Center for Responsive Politics (CRP) have criticised the lack of
budgetary support afforded to the Commission by the administration in FY
1993 and 1995.[^863] Elizabeth Hedlund of CRP\'s *FEC Watch* alluded to
the fact that the Commission had reduced its budget requests in those
years in order to secure agreement with the OMB. One might argue that
this was a fair criticism because, as already noted, the FEC has a small
budget and it has avoided the \'padding\' characteristic in some other
agencies. Therefore, in circumstances where the final appropriation
received is substantially below the FEC\'s original budget request, core
programmes such as disclosure and enforcement become degraded. However,
in keeping with much of the debate that surrounds political finance
regulation, the issue of budgetary politics is a normative one. Those
advocating more expansive enforcement see the *quid pro quo* arrangement
where the budget request is reduced in return for securing OMB approval
as highly undesirable. Yet those who view the regulations as stifling
and vigorous enforcement as undesirable argue that the budgetary
negotiations described above have been, and continue to be the common
practice. For example, when Commissioner Mason was asked about the CRP
criticisms he opined that the legitimate role of the OMB was to control
expenditure and that, unlike many other agencies, the concurrent
submission status of the FEC afforded it more leverage than other
agencies in OMB negotiations.

> Commissioner Mason: \'This agency is in better shape in that regard
> than virtually any other agency in the government. It is a normal part
> of the administrative process to request resources and submit them to
> the OMB, and have the OMB cut them. And from the point of view of an
> administrator of an individual agency, I view that as normal. If I
> were to submit a budget to the OMB, and have it entirely approved, I
> would wonder what was wrong. What else should I have asked for? In
> other words, OMB\'s function is in part to match resources and goals,
> you would expect them to play a role in eliminating marginal efforts,
> projects. Now obviously there could be very vigorous disputes as to
> what\'s marginal or of low value but that\'s their job. So the fact
> that they've done it is of no surprise. There's many unique issues
> that this agency faces and that just isn't one of them.\'
>
> \'The reason why we are in better shape than almost any other agency
> is that we do have what we call concurrent submissional, or bypass
> authority. Where if we are not satisfied with what the OMB give us, we
> can go straight to Congress. And the Commission has done that in the
> past and at least in one occasion, we were successful as a result of
> that. So, other agencies do that, but they do it in a much less formal
> way. So, what has happened in 93 and 95, because I wasn't here but at
> least what has happened a couple of years of the several I have been
> here is that we will submit a request to OMB, and OMB come back and
> say it needs to be cut, and we will negotiate. And even though we know
> we can go straight to Congress, we know we are much better off
> reaching agreement with OMB. And so we will try to exercise the
> leverage we have in essence of the bypass authority. You know, if we
> get this much then we'll agree, if we can't, we just have to agree to
> disagree, and go make our case to Congress. That gives us a little
> more leverage that some other agencies have. And if the accusation is
> that\'s the process that went on in 93, and 95, I say so much better
> for the agency.\'[^864]

When Commissioner Thomas was asked about FEC/OMB budget negotiations and
the lack of support alluded to by the CRP he commented:

> Commissioner Thomas: \'There has always been a tension there, on the
> one hand, we don't want to view ourselves as needing OMB approval to
> take our budget request on to Congress. By the same token we realise
> realities. If you can get agreement with OMB on a budget dollar amount
> and they're willing to argue in support of that, with Congressional
> folks, it does help you because which ever side the administration
> falls on, that side of the Congressional leadership will in theory be
> receptive to an argument from OMB, yea give the FEC that amount, we
> agree that they should get this amount. But that tension is always
> there. Some years we have been able to get an agreement with OMB by
> going down a tiny bit on the amount we had originally wanted to get,
> and we've been willing to accept that slight reduction in exchange for
> getting OMB\'s support. In other years though, we've said, 'sorry OMB
> we can't go down as low as you think we should go, we are going to go
> right straight to Congress and ask for it directly.\' And in that
> sense, the agency has a pretty good track record and of breaking out
> and seeking money from Congress independently when OMB has not been
> willing to go along with what we want. The real crunch time ends up
> coming up on the Hill anyway, our battles with Congress that determine
> where we're going to come out on the process. What is interesting to
> me, is to take the dollar amount that we are seeking from Congress
> after we have had our negotiation with OMB and compare what we end up
> with after Congress has finally gone through the appropriation
> process. And in some of those tough years, 95, 96, 97, and 98
> time-frame, you can see the amount we were requesting was always being
> chopped by Congress, and on top of that, they were earmarking money
> they would give us, for computers, instead of for staffing. In recent
> years, we've seen Congress pretty much give us the dollar amount that
> we're asking for, so the only battle we faced is whether Congress is
> earmarking so much of it, so much of it for computers that it was
> going to force us to cut our staffing.\'[^865]

Despite the fact that the OMB has only supported the Commission\'s full
budget request on two occasions, FY 1976 and FY 1998, without the bypass
authority alluded to by Tina VanBrakle and Commissioners Mason and
Thomas, the passback figure received by the Commission might have been
even lower. For example, although appendix E illustrates the OMB
passback from FY 1976 to FY 2002, these figures were final
determinations after the negotiation process occurred. Upon examination
of the correspondence between the Commission and the OMB, many initial
determinations made by the OMB were below post-negotiation levels. For
example, the FY 1993 passback of \$19,085,000 was successfully appealed
and increased to \$21,310,000. The FY 1994 passback of \$20,896,00 was
increased to \$21,151,000, though Congress eventually appropriated a
higher figure of \$23,564,000 that year. In October 1993 President
Clinton issued a memorandum entitled an \'Agency Streamlining Plan.\'
This sought to reduce the executive branch civilian workforce by 12%.
Although the directive requested all independent regulatory commissions
to comply with the memorandum, Chairman Thomas wrote to the OMB noting
that such a directive was not legally binding on the FEC and that \'the
Administration had called for strengthening the Commission, not its
diminution.\'[^866] The following year Chairman Thomas wrote to urge the
OMB to support the FEC\'s FY 1995 budget request of \$29,828,000.
However, the passback received was approximately \$2.75 million below
that figure. Again this hindered budgetary negotiations with Congress,
which eventually appropriated \$25,648,000 that year. The next year, FEC
Chairman Trevor Potter wrote to the OMB justifying his FY 1996 request
of \$31,820,500. Although the OMB only supported a passback of
\$29,021,000, they did write to Bob Livingston (R-LA) objecting to the
appropriation subcommittee mark of \$26,521,000 that was eventually
appropriated by Congress.[^867] The appeal process was more successful
in 1996, when the Commission urged the OMB to reconsider its FY 1997
\$29,000,000 passback. Although the passback was increased to
\$31,080,000, Congress appropriated \$28,165,000, a figure even lower
than the original passback. The administration was surprisingly
supportive of the Commission\'s FY 1998 budget request, given the
controversy surrounding the campaign finance practices of Clinton/Gore
and the DNC. Not only did the OMB provide a passback equal to the amount
requested by the Commission (\$34,216,000), it also urged Congress to
appropriate the supplemental funding required to investigate the
allegations surrounding the 1996 election cycle. President Clinton wrote
to Speaker Gingrich saying that:

> \'More money for the agency should be part of a bipartisan effort to
> restore the public trust in the way
>
> we finance elections to the Congress and the Presidency.\'[^868]

President Clinton\'s support for the FEC was also reported in various
newspapers at the time, including *USA Today* and was also set out in a
September 17 *Statement of Administration Policy*.[^869] However,
despite the uncharacteristic support lent by the administration,
Congress appropriated almost \$3 million less than the OMB had requested
and also denied the \$6.6 million supplemental funding to investigate
the 1996 elections. The Commission was unable to reach budget agreement
with the OMB during FY 2000, FY 2001 and FY 2002. Formal appeals have
been regularly submitted to the OMB by the FEC and, as appendix E shows,
the disparity between the FEC request and the OMB passback appears to be
widening. One might argue that a lack of support from the OMB and the
submission of a formal appeal against passback determinations have
become the norm. Formal appeals are written by the FEC Chairman and may
be co-signed by the Vice-Chairman. The FEC Staff Director and certain
members of Congress might also make representations on behalf of the
Commission to the OMB.[^870] FEC appeals against OMB passback
determinations often set out the importance of working with the OMB and
the desire to reach agreement, yet all written appeals also allude to
the agency\'s bypass authority under 2 U.S.C 437d (d) of the FECA. The
Commission makes its case against passback determinations by explaining
the consequences for agency performance if Congress is guided by, and
comes to accept the OMB figure. Appeals invariably refer to staff cuts
and reduced or degraded disclosure and enforcement capacity. One might
argue that whilst the appeals process has yielded some positive results
for the Commission, a significantly higher passback has rarely been
negotiated. Therefore, now that FEC/Congressional relations have
improved, FEC budget negotiators might be more successful by employing
their bypass authority and trying to make the most persuasive case that
they can directly to Congress. One might argue that since many of the
controversial issues have been taken \'off the enforcement agenda,\'
Congress might prove to be more responsive to the Commission\'s
budgetary needs. For example, in FY 2002 the FEC budget request stood at
\$47,671,000, yet despite an OMB passback of \$41,411,000, Congress
finally appropriated \$43,689,000. However, the lack of OMB support for
FEC budget requests has undermined the agency\'s negotiating position
with Congress.

**[Conclusion]{.underline}**

In conclusion, Congress and the administration have shaped the nature
and effectiveness of FEC enforcement. Although the FEC budget has grown
quite significantly over the years, the demands on the agency have
outpaced that growth. Spending by the Department of Justice and
Congressional committees investigating the 1996 elections demonstrated
the relative modesty of the FEC budget. This small size has made FEC
enforcement particularly vulnerable to Congressional micro-management
strategies. Ring-fencing of appropriations away from enforcement,
restricting the agency\'s authority to recruit staff, despatching
investigators and auditors to scrutinise the agency, and attempting to
undermine the General Counsel and Staff Director\'s security of tenure
were all designed to micro-manage FEC enforcement. As the FEC became
more vigorous in its enforcement efforts, increasing financial
penalties, promulgating new personal use rules and initiating unpopular
litigation against conservative groups, so the nature of
FEC/Congressional relations deteriorated. The combination of
Congressional pressure and new Commissioner appointments has resulted in
a change in enforcement ethos. One might argue that the agency has
attempted to de-politicise enforcement. Bill Allison commented on this:

> Bill Allison: \'It seems like, there's nothing wrong with
> disclosure,\....it almost seems like there should be two separate
> agencies involved.\'[^871]

The agency has moved away from its previous attempts at enforcing the
controversial areas of law, the issues that might have the most
substantive impact on the regulated community and has embraced an ethos
that stresses bright line, less combative, low-impact programmes.
FEC/Congressional relations have improved since these changes and the
regulated now appear content with the regulators. One might argue that
the \'love-fest\' alluded to earlier will continue as long as
enforcement remains in line with the Congressionally preferred model.
The agency is likely to stress the supremacy of voluntary compliance, of
education and outreach, administrative fines and ADR. It is also likely
to continue the process of modernisation through the application of
information technology and develop the more efficient management
practices recommended by the PWC audit. The dominant enforcement model
has become the one most commonly associated with First Amendment
Republicans. The FEC will become increasingly disclosure-based, with the
most significant campaign finance investigations carried out by
Congressional committees and the Department of Justice Public Integrity
Section. Whilst Commissioner Mason asserted that the role of the OMB was
to control expenditure, the Administrations consistent lack support for
the FEC cannot be justified as merely \'the normal way of doing
business.\' The fact that the OMB has endorsed the agency\'s budget
request twice in twenty-seven years indicates an enduring attitude about
the importance of enforcing the nation\'s campaign finance laws.
Administrations representing both political hues have failed to support
the Commission adequately. When the Administration fails to lend its
support, Congress finds it more difficult to justify appropriating the
amount requested by the agency.

**[Conclusion]{.underline}**

U.S. political finance law is unique in that academics, politicians,
lawyers and even those charged with its enforcement have often asserted
that it is undesirable, often unworkable and, by its very nature,
infringes First Amendment free speech protections. The opposition to
political finance law may stem from an apolitical rationalism, from
philosophical beliefs, or from partisan self-interest. Yet others are
equally convinced about the desirability of those laws and advocate
their vigorous enforcement. Notions of political equality, ethical
concerns about *quid pro quo* relationships, and the need for financial
transparency and effective deterrence usually inform this view. Jan
Baran employed the Kabuki theatre metaphor whereby government
decision-makers (the FEC in this case) attempt to reconcile these two
diametrically opposed positions by erring towards the centre
ground.[^872] However, this thesis has shown that the courts, the
executive and Congress have either hobbled the enforcement process, or
have shaped it into a largely benign form tolerated by the regulated
community.

**[The Courts]{.underline}**

The courts have played a significant role in weakening the enforcement
of campaign finance law. Larry Noble commented:

> Larry Noble: \'I teach at George Washington University, teach campaign
> finance law, and I start by telling the students in a large part this
> is a constitutional law class, every case you read is going to deal
> with First Amendment.\'[^873]

In *U.S. v United States Brewers' Association* (1916) the court failed
to resolve the constitutional issues involved in the case, thereby
contributing to a cultural timidity towards enforcement. The *U.S. v
Newberry* (1921) case dealt a serious blow to enforcement when it
declared that Congress did not have the authority to regulate primary
elections or the nomination process. Although the *U.S. v Classic*
(1941) decision reversed *Newberry*, its significance endured until 1971
when the FECA was enacted. In 1973 Congressional attempts to place
limits on media expenditures were deemed unconstitutional and mandatory
spending limits were also outlawed in *Buckley v Valeo* (1976). The
effectiveness of regulation was also limited by the narrow way in which
express advocacy was defined in *FEC v CLITRIM* (1980), *Faucher v FEC*
(1991) and *FEC v Christian Action Network* (1995). Additionally, the
Commission\'s own express advocacy regulations were deemed
unconstitutional in *Maine Right to Life Committee* (1996) and *Virginia
Society for Human Life v FEC* (2001). The courts have also ruled against
the Commission's regulations on coordination in *FEC v Public Citizen*
(1999) and *FEC v Christian Coalition* (1998). Whilst the legitimate
role of the courts is to uphold constitutional protections and to check
the over zealous use of regulatory power, many court cases have
seriously eroded the efficacy of the law.

**[The Executive]{.underline}**

Presidents, the Department of Justice and the Office of Management and
Budget have also contributed to weak enforcement. Theodore Roosevelt was
completely reliant on corporate money in his 1904 election and Harding,
Nixon and Clinton/Gore have all broken either the letter of the law, or
the spirit of it. Since the establishment of the FEC, many Presidents
have talked tough on campaign finance issues, yet none have been willing
to appoint independent minded pro-enforcement Commissioners. Despite the
*Buckley* ruling, the White House has allowed Congress to make four *de
facto* appointments to the Commission. The independent, blue-ribbon
panel advocated by the reform community, is a model alien to the
American political system and one that is unlikely ever to be
established. However, the Department of Justice and the OMB have hobbled
enforcement more directly. No prosecutions were attempted under the 1907
Act and only one was attempted under the 1910 and 1911 Acts. The
Department of Justice also failed to enforce either the 1925 FCPA or the
1971 FECA. In order to avoid the controversy that often surrounds
partisan campaign finance cases, the Department of Justice either
deflected criticism of their failure to act by blaming others, usually
the statutory officers under the 1971 Act, or argued that enforcement
was unjustified because of a lack of historical precedent. Since the FEC
was created, the OMB has only approved the Commission\'s full budget
request on two occasions. Despite being one of the smallest agencies in
the Federal Government, the OMB passback has often been significantly
below the figure determined by the agency. Whilst the agency has been
conservative in assessing its budgetary needs due to the sensitive
nature of its mandate, budget negotiations and the appeals process have
rarely led to significant increases in the original OMB passback.
Although the agency has concurrent submission authority, the consistent
lack of support from the OMB has undermined the Commission\'s bargaining
position with Congress.

**[Congress]{.underline}**

Congress has been the most significant force in ensuring a permissive
regulatory environment. Prior to the passage of the FECA 1974,
enforcement was either ignored or Congress instituted parochial, largely
illusory arrangements. Those responsible for enforcement actively
discouraged the scrutiny of disclosure reports. Access to the index log
was arbitrarily denied, short office hours were kept, and the
disclosures that were made were often incomplete or inaccurate.
Additionally, Congress enacted law that was narrow in remit and
contained numerous loopholes. President Johnson described the 1925 FCPA
as \'more loophole than law, inviting evasion and circumvention.\'[^874]
The Congressional attitude towards enforcement was illustrated by the
*U.S. v Classic* (1941) decision. Although the court ruled that Congress
was entitled to regulate primary elections, it failed to do so until
1971. The failure to regulate primary elections meant that the law had
only nominal utility as the outcome of the general election was often
determined at this stage. Additionally, when Congress created the FEC,
the bipartisan structure, the diffused leadership and weak powers, all
undermined its ability to enforce the statute effectively. The due
process protections built into the law also meant that enforcement
timeliness was poor, something that has undermined the practical
application the democratic or disclosure model of regulation. More
recently, Congress has sought to control and micro manage enforcement by
introducing term limits for Commissioners, cutting the FEC budget,
ring-fencing appropriations, dispatching auditors to investigate the
agency and targeting its senior staffers for removal. Investigations of
high-profile groups and litigating unsettled areas of law have been
discouraged by Congress, whilst electronic filing, ADP, administrative
fines and ADR have been praised and encouraged. The Congressionally
preferred model of enforcement embraces non-controversial low impact
programmes and disclosure, whilst controversial, substantive and
traditionally more adversarial enforcement is discouraged.

**[FEC]{.underline}**

One of the most enduring criticisms of the Commission has been the lack
of timely enforcement. Some have blamed the FEC for this slowness.
Trevor Potter described how enforcement cases were not immediately
allocated to a lawyer and worked, but were put in \'Siberia.\'[^875]
Donald McGahn also criticised the bureaucracy for its slowness, saying
that he often had to reacquaint himself with cases after hearing nothing
from the Commission for several months.[^876] Although many others
referred to the agency\'s lack of timeliness, a range of variables
contributed to the Commission\'s poor performance. Due process
protections contained in the law has meant that enforcement is
invariably a lengthy and multi-staged affair. Some in the regulated
community have sought to take advantage of the Commission's weak legal
powers by dragging out the conciliation process. Stale cases become less
salient to the electorate and the Commission. Cain and Lochner opined
that the electorate were less likely to change their voting behaviour as
a consequence of old violations and the Commission actively disposes of
stale cases under the EPS.[^877] Additionally, the significant rise in
campaign spending has resulted in a workload that has outpaced
enforcement capacity. Furthermore, case complexity and a dramatic rise
in the number of respondents involved in each MUR has also reduced
timely enforcement.

The administrative fines programme has generally been welcomed by the
regulated community, and public interest advocates. As the FEC has been
criticised for the complexity of the law and its regulations, the fines
programme was seen as an example of bright line regulation and best
practice. However, its utility as a deterrent against non-compliance
should not be overestimated. Treasurers are responsible for filing
disclosure reports in a timely and accurate fashion, not candidates.
Fines can also be paid from political donations and a Notice of Proposed
Rule Making (NPRM) published April 25 2002 sought to reduce the level of
penalties imposed. Finally, it is also unclear if the programme will
\'free up\' resources in the OGC by removing low-level violations from
their enforcement profile.

The regulated community was often ignorant about ADR or expressed a lack
of enthusiasm for the programme. However, whilst its shortcomings have
been described at length in chapter 2, it is a useful programme for
inexperienced, first-time players and those who wish to resolve a
low-level violation quickly and cheaply.

The Commission was found to enforce the law in a non-partisan way. The
bipartisan structure and the mixed-majority voting requirement ensure
that one Party cannot use the agency as a political weapon against the
other. Empirical research by PWC also found the agency to enforce the
law without partisan bias.[^878] Under the EPS, the OGC dedicates more
resources to enforcing the law against high-profile repeat players than
it does to the political amateur. However, whether this results in
substantive enforcement depends on the Commission, not the bureaucracy.
If a MUR involves a high profile actor and an unsettled or controversial
area of law, the Commission may have difficulty in attracting the
necessary four votes in order to proceed. Conversely, although
first-time players are not rated as highly as repeat players are under
the EPS, their inexperience and lack of professional legal and
accounting services lead them to commit higher numbers of violations
which also tend to be the most easily detectable. Therefore, the amateur
does attract the attention of the RAD and the OGC. Furthermore, these
*malum prohibitum* cases benefit the agency as they \'get the numbers
up,\' and thereby contribute positively to agency performance
indicators. Whether one views this scenario as fair enforcement, becomes
a normative judgement.

Finally, this thesis challenged the traditional orthodoxy, most often
espoused by the reform community, that enforcement is weak because of
partisan deadlock between Republican and Democratic Party appointees.
Whilst partisanship was an issue that fed into the Commission\'s
decision-making process, it was not the only factor. Commissioners
tended to agree more often than disagree and most cases were clear,
routine and devoid of controversy. Legal interpretation also influenced
the way Commissioners voted. This has been especially important in
controversial or unsettled areas of law, like express advocacy and
coordination. Evidentiary also impacts on the decision-making process.
However, Jan Baran noted that evidence is not actually presented to and
scrutinised by the Commissioners, they merely rely on the facts
contained in the General Counsel\'s report. Finally, the individual
Commissioners' philosophy towards regulating politics also effects the
outcome of deliberations. Enforcement has been weak and whilst agency
performance has contributed to that weakness, the courts, the executive,
and most significantly Congress, have all played their part in
undermining the efficacy of enforcement.

> **[Appendix A]{.underline}**

###### Federal Election Campaign Act 1971

1.Limits the amount that candidates for Federal office can spend on a
range of media: television, radio, newspapers, magazines, etc., in any
primary, special, runoff, or general election. The expenditure limit is
calculated by applying a formula of ten cents multiplied by the number
of voting age population within the geographical unit covered by the
election.

2.No candidate may spend more than 60% of his/her media expenditure on
broadcasting.

3.Limits are placed on the amounts broadcast media may charge candidates
45 days before a primary election, and up to sixty days, before a
general election.

4.Each supplier of advertising space must have written certification
from the candidate, or person specifically authorised by the candidate,
that the expenditure is within the permitted limits of the law.

5.The ten cent formula, is periodically reviewed in conjunction with
rises in the Federal governments price index. By the time the FECA 1971
was enacted, this had risen to 10.43 cents.

6.The definition of election was broadened, encompassing; general,
special, primary, runoff, election, nominating convention or caucus,
delegate selection primary, presidential preference primary, or
constitutional convention.

7.Definitions of \'contribution,\' and \'expenditure\' are broadened
under the Act.

8.A candidate, and the candidates immediate family, may not contribute
to his/her own campaign, more than; \$50,000 for Presidential, and Vice
Presidential races, \$35,000 for Senatorial races, and \$25,000 for
Representative, delegate, or resident commissioner.

9.That the appropriate supervisory officers to oversee administration of
the Act shall be; the Clerk of the House, for House candidates,
Secretary of the Senate, for Senate candidates, and the Comptroller
General for Presidential candidates, and other miscellaneous committees.
Supervisory officers are to compile annual reports on each committee
which are to be offered for sale to the public.

10\. All political committees who receive in excess of \$1,000 per
calendar year must register with the appropriate supervisory officer/s.

11.All disclosure reports made, must also be filed at state level with
the Secretary of State for local inspection.

12.Political committees and candidates must report total cash on hand,
and total receipts by category. Each contribution over \$100 must be
recorded. Information mandated includes the name of the contributor;
address, occupation, place of work, and date the contribution was
received. Similar requirements are mandated for expenditures, and all
debts, and other financial obligations.

13\. Disclosure reports are to be made by candidates, and committees on;
the 10th day of March, June, and September, and on the 15th and 5th day
preceding an election, and the 31st of January. If contributions are
received after the last pre-election report and amount to over \$5,000,
a report must be made within 48 hours of receipt.

14.The costs of presidential nominating conventions must be disclosed
within sixty days.

15.Prohibits any contribution to a candidate, or committee by one person
in the name of another (so called ghost contributions).

16.Explicitly defines and codifies the role that corporations, and labor
unions can play in political campaigns, voter registration, and
get-out-the-vote drives.

17.Authorises the Comptroller General to act as a national
clearing-house for election information concerning the administration of
the Act.

[Sources]{.underline}

Alexander H (1972) *Financing the 1972 Election*: U.S.A. Lexington
Books, 603-604.

McCoy L (Ed) (1973) \'Symposium: Recent Reforms And Their Consequences:
General Accounting Office\'s Responsibilities In Federal Elections\':
Office of Federal Elections, U.S. General Accounting Office, 246.

> **[Appendix B]{.underline}**

**[General Accounting Office Interpretation of Federal Election Campaign
Act 1971]{.underline}**

**[Violation Profiles]{.underline}**

[Administrative, Disclosure Violations (*Malum prohibitum)*]{.underline}

1\. Failure to register with the GAO.

2\. Failure to disclose the name, address, occupation, business
location, and date of contribution. Any omissions of the above data
would constitute a violation.

3\. Failure to disclose contributions in excess of \$100.

4\. Failure to include legal information in literature seeking
contributions.

5\. Failure to list depositories.

6\. Inaccurate reporting of cash on hand.

7\. Incomplete, or inaccurate disclosure of contribution transfers
between committees.

8\. Failure to report contributions of \$5,000, or more, within 48
hours, if received after the last pre-election disclosure date. This
mandate, also applied to such contributions made in the immediate post
election period.

9\. Failure to report, and inaccurate reporting of loans; debts, shares,
and in-kind contributions.

10\. Late reporting.

11\. Incorrectly reported transfers, payments, and administrative
errors, like using the incorrect disclosure form.

These offences may involve attempts to limit or misrepresent,
information required by the Act.

[Substantive Violations (*Malum in se)*]{.underline}

1\. Improper handling of cash contributions.

2\. Failure of mass media institutions to obtain the necessary
certification, stating that a candidates expenditures are within the
legal limits.

3\. Failure to keep accurate, and detailed records, especially when
related to large sums.

4\. Over-reporting of contributions, and expenditures by large amounts.
This strategy is often motivated by those wishing to mislead the
electorate, making them think that campaigns, are more successful than
they are.

5\. Attempts at 'creative accounting' by reporting fictitious
expenditures in order to make balances appear accurate.

6\. The use of altered or duplicate invoices.

7\. Knowing, and wilful, false declarations.

8\. Patronage contributions by state employees who receive a benefit.

These offences, if identified, would warrant a criminal referral to the
Department of Justice.

Alexander H (1976) 15-17.

Cain B & Lochner T (1999) 1914.

> **[Appendix C]{.underline}**

**[Breakdown of GAO audits finding violations in the political finance
activities of the Nixon, and McGovern campaigns.]{.underline}**

President Richard M. Nixon:

August 26th 1972: failure of the main finance committee to re-elect the
President to;

1\. Failure to report and record \$25,000 contribution from Kenneth
Dahlberg.

2\. Failure to record records relating to four Mexican bank cheques,
totalling \$89,000.

3\. Failure to maintain records relating to a currency deposit of
\$350,000.

February 13th 1973:

1\. Failure of the committee to report large contributions immediately
before the November 7th general election.

March 12 1973:

1\. The committee failed to keep proper records regarding cash
contribution by Robert L. Vesco, and failure to report said
contribution.

April 27 1973

1\. Failure of the committee to report payments to Theodore Brill;
Robert Odle, and Phillip Joanou. The report also stated concern about
large amounts of unaccounted for cash that the committee had control
over.

May 3 1973:

1\. Concealment of a payment made to fund a New York Times advertisement
supporting President Nixon's decision to mine Haiphong harbour.

May 20 1973:

1\. Failure to report a number of payments made by the finance committee
to re-elect the President. Some of these payments, involved payments to
the 'Watergate defendants.'

George McGovern:

McGovern's finances were much more decentralised, and therefore, far
more difficult to monitor, and account for. For example, 750 committees
registered with the Office of Federal Elections as supporting McGovern.

October 6th 1972:

1\. Inadequate record keeping in the campaign generally and a large
number of errors were contained in the disclosures made.

October 31st 1972:

1\. Transfer discrepancies, difficulty in identifying committee
treasurers, and failure to provide contributor information.

August 13th 1973:

1\. Report recommending the referral of the Wisconsin McGovern for
President Committee, for failing to keep adequate records, and failing
to control, and account for, expenditures, and disclosures.

October 17th 1973:

1.  Report recommending the referral of the Massachusetts McGovern for
    President Committee. They failed to correct incorrect reports, and
    failed to account for expenditures, and contributions.

[Source]{.underline}

McCoy L (1974) 248-250.

> **[Appendix D]{.underline}**

**[Enforcement statistics that set out the ability of the OGC to process
MUR\'s.]{.underline}**

+-------------+-------------+-------------+-------------+-------------+
| YEAR        | TOTAL       | CLOSED      | PERCENT     | PENDING AT  |
|             |             | DURING YEAR | CLOSED      |             |
|             | CASE-LOAD   |             |             | END OF YEAR |
+-------------+-------------+-------------+-------------+-------------+
| 1977        | 211         | 118         | 55.9        | 93          |
+-------------+-------------+-------------+-------------+-------------+
| 1978        | 574         | 401         | 69.9        | 173         |
+-------------+-------------+-------------+-------------+-------------+
| 1979        | 441         | 288         | 65.3        | 153         |
+-------------+-------------+-------------+-------------+-------------+
| 1980        | 407         | 193         | 47.4        | 214         |
+-------------+-------------+-------------+-------------+-------------+
| 1981        | 280         | 167         | 59.6        | 113         |
+-------------+-------------+-------------+-------------+-------------+
| 1982        | 226         | 133         | 58.8        | 93          |
+-------------+-------------+-------------+-------------+-------------+
| 1983        | 196         | 118         | 60.2        | 78          |
+-------------+-------------+-------------+-------------+-------------+
| 1984        | 361         | 189         | 52.4        | 172         |
+-------------+-------------+-------------+-------------+-------------+
| 1985        | 429         | 292         | 68.1        | 137         |
+-------------+-------------+-------------+-------------+-------------+
| 1986        | 328         | 185         | 56.4        | 143         |
+-------------+-------------+-------------+-------------+-------------+
| 1987        | 404         | 233         | 57.7        | 171         |
+-------------+-------------+-------------+-------------+-------------+
| 1988        | 407         | 187         | 45.9        | 220         |
+-------------+-------------+-------------+-------------+-------------+
| 1989        | 438         | 237         | 54.1        | 201         |
+-------------+-------------+-------------+-------------+-------------+
| 1990        | 396         | 159         | 40.2        | 237         |
+-------------+-------------+-------------+-------------+-------------+

**Source**

[www.opensecrets.org](http://www.opensecrets.org/) 3.3.01.

> **[Appendix E]{.underline}**

**[Detailed Budget History]{.underline}**

FEC determinations include any supplemental budget requests made that
year. The OMB passback is the figure the administration is willing to
agree to. The legal mechanics and politics of OMB budget negotiations
are described in the main discussion.

In order to aid the validity of the table the OMB passback figures
include the administration\'s response to any supplemental requests
made. Some requests may have been revised down at a later date in order
to reach agreement with OMB or revised up in light of an increased
workload or unforeseen additional costs. However, the table is still
useful in showing what sums the FEC considered necessary for it to
perform its mandate and the responses of the executive and Congress.

The table shows that the OMB only supported the agency\'s budget request
in full on two occasions, 1976 and 1998. The data also shows that whilst
Congress has been willing to appropriate funds in excess of the OMB
passback, this figure has often been significantly below that requested
by the agency.

[KEY]{.underline}

\(A\) Congress authorised a \$1,458,000 rescission on funds
appropriated.

(B)\$1,500,000 earmarked for automated data processing (ADP) upgrade.

(C)\$1,700,000 supplemental request included in that years budget was
sought to address the complaints surrounding the 1996 election cycle:
request denied.

(D) \$2,500,000 earmarked for internal ADP upgrade.

(E) \$3,800,000 earmarked for computerisation; \$750,000 transferred to
    the GAO to pay for PWC Audit (1999), \$300,000 earmark to place
    reports on the Internet.

(F) \$4,400,000 earmarked for computerisation; \$1,120,000 earmark to
    improve enforcement procedures and \$59,000 reduction in travel and
    administration costs for FEC.

  --------------------- ------------------------ ------------------------- ---------------------------------
  **[FISCAL             **[FEC                   **[OMB                    **[APPROPRIATION]{.underline}**
  YEAR]{.underline}**   REQUEST]{.underline}**   PASSBACK]{.underline}**   

  1976                  \$6,605,000              \$6,605,000               \$5,000,000

  1976 Transitional     \$1,589,000              \$1,089,000               \$1,250,000
  Quarter                                                                  

  1977                  \$6,950,000              \$6,180,000               \$6,180,000

  1978                  \$8,433,000              \$7,143,000               \$7,610,000

  1979                  \$8,917,000              \$8,517,000               \$8,293,000

  1980                  \$11,107,620             \$9,039,000               \$8,946,000

  1981                  \$12,142,690             \$9,662,000               \$9,662,000

  1982                  \$13,435,119             \$8,759,907               \$9,174,400

  1983                  \$10,707,354             \$10,077,000              \$9,897,000

  1984                  \$10,438,139             \$10,095,000              \$10,744,000

  1985                  \$13,763,760             \$10,245,760              \$13,016,000

  1986                  \$13,421,000             \$12,756,000              \$11,898,000

  1987                  \$14,140,000             \$12,883,000              \$12,883,000

  1988                  \$14,322,500             \$14,174,000              \$14,174,000

  1989                  \$16,298,000             \$15,683,000              \$15,683,000

  1990                  \$15,522,000             \$14,257,000              \$15,330,000

  1991                  \$18,674,000             \$17,150,000              \$17,150,000

  1992                  \$20,611,000             \$18,808,000              \$18,808,000

  1993                  \$22,430,000             \$21,310,000              \$21,143,000

  1994                  \$23,964,000             \$21,151,000              \$23,564,000

  1995 (A)              \$29,828,000             \$27,106,000              \$25,648,000

  1996 (B)              \$31,820,000             \$29,021,000              \$26,521,000

  1997 (C) (D)          \$35,341,000             \$31,080,000              \$28,165,000

  1998 (E)              \$34,216,000             \$34,216,000              \$31,650,000

  1999 (F)              \$37,653,000             \$36,504,000              \$36,791,000

  2000                  \$38,580,000             \$38,516,000              \$38,278,000

  2001                  \$44,323,000             \$40,500,000              \$40,410,000

  2002                  \$47,671,000             \$41,411,000              \$43,689,000
  --------------------- ------------------------ ------------------------- ---------------------------------

Source: Federal Election Commission, Congressional Affairs Office,
Detailed Budget History Revised July 2001.

##### 

####### 

####### Appendix F

###### Introduction

###### 

###### Bipartisan Campaign Finance Act (BCRA) 2002 

The BCRA (2002) is a significant reform to the law passed in the post
Watergate era. It attempts to proscribe the raising and spending of
non-federal funds, so called soft money, clarify certain legal
definitions and close a number of loopholes that have been exploited by
the regulated community. The law also promotes certain egalitarian
ideals by allowing candidates to raise money in excess of the revised
contribution limits if they are faced with a particularly wealthy
opponent, the so called 'millionaires amendment.'

However, it remains unclear how the BCRA will shape the conduct of the
political process as it is being challenged in the courts. Supporters
and defenders of the law have filed suit in U.S. District Court against
the Federal Election Commission. Those who seek to defend the BCRA argue
that the FEC has weakened the original statutory intent by promulgating
new rules that implement the law in a permissive way. For example, on 8
October 2002, Christopher Shays (R-CT) and Martin Meehan (D-MA) filed
suit arguing that the FEC had acted in an arbitrary and capricious
manner, had abused their discretion and had acted in excess of their
statutory jurisdiction. All these charges related to FEC rule making.
The law aimed to stop the 'solicitation' (asking for) and the
'directing' (spending) of soft money. However, in a 4-2 Commissioner
vote tally that rejected the General Counsel's stricter draft
regulations, 'solicit' or 'direct' did not include the words 'recommend'
or 'suggest.' Therefore, Shays/Meehan *et al* asserted that a loophole
has been contrived to allow the raising and spending of soft money that
eludes the statutory intent of the BCRA. Conversely, Senator Mitch
McConnell (R-KY) filed suit against the FEC charging that the BCRA is
unconstitutional. He described the reform as 'the most threatening
frontal assault on core First Amendment values in a generation, that it
is the modern-day Alien and Sedition Acts and that it will fundamentally
undermine the political Parties.'[^879] Those defending the Act argue
that the BCRA is a modest reform that merely attempts to close the
loopholes present in the Federal Election Campaign Act 1971[^880].
Again, conversely, those who challenge the law claim that is an epochal
change that will have devastating consequences on democratic politics
and destroy First Amendment freedoms. Each side caricature's the Act as
they attempt to support or challenge it. However, a clearer picture of
the BCRA is likely to emerge in the summer of 2003 when the U.S. Supreme
Court reviews its constitutionality.

**[The main provisions of the BCRA (2002) are set out
below]{.underline}**

**[Reduction of Special Interest Influence]{.underline}**

######## **[Prohibition of Soft Money or Non Federal Funds]{.underline}**

######## 

######## 'A national committee of a political party may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.' 

'Applicability: The prohibition established by paragraph 1 applies to
any such national committee, any officer or agent acting on behalf of
such a national committee, and any entity that is directly or indirectly
established, financed, maintained, or controlled by such a national
committee.'

In addition to the 'solicit' and 'direct' loophole alluded to in the
introduction, a further controversy has surrounded the term 'officer' or
'agent.' Those who seek to defend the law argue that an individual or
employee may not have authority to raise or spend soft money, because
he/she is not being an officer or agent. However, the concern has been
that persons not reaching the status of 'officer' or 'agent' might
engage in activity that the BCRA 2002 was designed to prohibit. Implicit
understandings with informal contacts are notoriously difficult to
regulate.

Members of Congress, Federal Officeholders and Federal candidates are
banned

from raising soft money in connection with any Federal election.

State, district and local party committees must fund all their Federal
election activity from hard money, that which complies with the
contribution limits and prohibitions on funding sources contained in the
law.

The Levin Amendment allows for certain soft money expenditures by state
and local party committees for 'generic get out the vote drives' and
voter registration.

All political committees are proscribed from soliciting funds or
directing the expenditure of funds to non-partisan, not-for-profit
tax-exempt organisations in connection with an election to Federal
office. These entities are usually referred under their Internal Revenue
Code and are commonly known as 501 or 527 groups.

**[Issue Advertisements/Electioneering]{.underline}**

In the past, Parties have evaded the law on contribution limits by
thinly disguising their electioneering broadcast advertisements as
'issue discussion' protected under the First Amendment. Public interest
advocates commonly argue that candidates have significant influence over
the content of these 'issue ads' and engage in the illegal
'co-ordination' of these activities with political Parties. The BCRA
2002 aims to stop this practice and sets out strict rules for media
purchases that include an 'electioneering communication.' An
electioneering communication is a new term that possesses an expansive
character. For example, prior to the enactment of the BCRA 2002,
messages were only strictly regulated if they 'expressly advocated' the
election or defeat of a clearly identified candidate for Federal office.
However, the 'electioneering communication' at 1 moves beyond that
standard because is not involve subjective interpretation about whether
the message is designed to influence voting behaviour in a Federal
election. The broadcast simply has to be close to an election and a
candidate is identified in the advertisement.

The law states that an electioneering communications is:

1.'Any broadcast, cable, or satellite communication which refers to a
clearly identified candidate for Federal Office that is made 60 days
before a general, special, or runoff election, or 30 days before a
primary or preference election, or a convention, caucus of a political
Party that has authority to nominate a candidate, for the office sought
by the candidate.'[^881]

If the communication refers to a candidate for an office other than
President or Vice President, is must be 'targeted' to meet the
electioneering standard. Targeting means that 50,000 or more people in a
particular Congressional District are able to receive the broadcast
message.[^882]

The law also set out that is this 'electioneering communication'
standard is deemed insufficient by final judicial decision to uphold the
regulation, then an electioneering communication will be defined as
follows.

2.'Electioneering communication' means any broadcast, cable, or
satellite communication which promotes or supports a candidate for that
office, or attacks or opposes a candidate for that office (regardless of
whether the communication expressly advocates a vote for or against a
candidate) and which also is suggestive of no plausible meaning other
than an exhortation to vote for or against a specific candidate.'[^883]

## This electioneering standard is a much narrower definition that has much in common with the old 'express advocacy' standard. One might argue that when the U.S. Supreme Court reviews the constitutionality of the Act, this narrower interpretation is likely to be adopted, as it is less of an encroachment on First Amendment free speech protections. 

## 

## 

## Contribution Limits

Prior to the enactment of the BCRA 2002, contribution limits were set at
\$25,000 aggregate in hard money per year (\$50,000 per two-year
election cycle), with a \$1,000 limit to individual candidates per
election, with primary and general elections defined separately. The
reform liberalises contribution ceilings, with a \$95,000 aggregate per
election cycle and a \$2,000 contribution limit per election to
individual candidates. Individual contribution limits to Parties have
been raised in line with the general trend but the \$5,000 Political
Action Committee donation to candidates remains unchanged. Finally the
millionaires amendment introduces a fairly complex set of arrangements
to calculate 'variable contribution limits' to benefit those facing
particularly wealthy candidates. The more personal wealth these
individuals spend on their election campaigns, the higher the
contribution limits rise.[^884]

**[Miscellaneous]{.underline}**

Prohibitions on fundraising on Federal property are strengthened, the
statute of limitations is increased from 3 to 5 years and penalties for
those violating the Act are made more punitive.

##### Bibliography and Sources

#### Primary Sources

**[Interviews with the author, Washington D.C. U.S.A. (14-28 October
2001)]{.underline}**

Bill Allison, Senior Editor, Center for Public Integrity, 22.10.01.

Jan Witold Baran, Head of Election Law and Government Ethics Practice
Group, Wiley Rein & Fielding LLP, 17.10.01.

Bob Bauer, Chair Political Law Group, Perkins Coie LLP, 23.10.01.

Ron Harris, FEC Press and FOIA Officer, Kelly Huff, FEC Press Officer, &
Shawn Werth, FEC Administrative Fines Independent Review Officer,
15.10.01.

David Mason, FEC Vice Chairman, 22.10.01.

Donald F. McGahn II, General Counsel, National Republican Congressional
Committee, 16.10.01

Larry Noble, Executive Director, Center for Responsive Politics and
former FEC General Counsel, 17.10.01.

Trevor Potter, Lawyer Caplin & Drysdale, Former FEC Commissioner,
24.10.01.

Allen Silberman, FEC ADR Director, 15.10.01.

Scott Thomas, FEC Commissioner & former FEC Chairman, 18.10.01.

Tina VanBrakle, FEC Director of Congressional Affairs, 18.10.01.

Alex Vogel, General Counsel, National Republican Senatorial Committee,
26.10.01.

Fred Wertheimer, President of Democracy 21 and former President of
Common Cause, 25.10.01.

**[FEC Budget Correspondence to Director of OMB:]{.underline}**

FEC Chairman John Warren McGarry, September 3, (1991)

FEC Chairman John Warren McGarry, December 5, (1991)

FEC Chairman Joan D. Aikens, September 1, (1992)

FEC Chairman Joan D. Aikens, October 7, (1992)

FEC Chairman Scott Thomas, February 19, (1993)

Staff Director John Surina, April 30, (1993)

FEC Chairman Scott Thomas, October 5, (1993)

FEC Chairman Scott Thomas, November 1, (1993)

FEC Chairman Scott Thomas, December 9 & 16, (1993)

FEC Chairman Trevor Potter, September 9, (1994)

FEC Chairman Danny Lee McDonald, October 20, (1995)

FEC Chairman Lee Ann Elliott, February13, (1996)

Finance Committee Chairman Scott Thomas, March 27, (1996)

FEC Chairman Lee Ann Elliott, October 10, (1996)

FEC Chairman John Warren McGarry & Finance Committee Chairman Joan D.

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## 

## 

### Newspaper Sources: Various Dates, Various Years

*New York World*

*The New York Times*

*The Wall Street Journal*

*The Washington Post*

*The Washington Times*

*USA Today*

*Time Magazine*

## 

## 

### Internet Web-sites

[www.fec.gov/members/thomas](http://www.fec.gov/members/thomas) 29.7.02

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[www.straighttalkamerica.com](http://www.straighttalkamerica.com/)
28.5.02

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[^1]: Cain B & Lochner T (1999) \'Equity and Efficacy in the Enforcement
    of Campaign Finance Laws\': *Texas Law Review* **77** 1935-36.

[^2]: Interview with the author, Washington D.C. 17.10.01.

[^3]: La Forge A (1996) \'The Toothless Tiger, Structural, Political and
    Legal Barriers to Effective FEC Enforcement\': An overview and
    recommendations: *The Administrative Law Journal*, **10** 354.
    Alexander Heard has stated that scandal is often a necessary
    catalyst to provoke Congressional reform proposals. Heard A (1960)
    *The Cost of Democracy*: Chapter Hill, U.S. University of North
    Carolina Press, 465.

[^4]: Many advocates of reform argue that regulation is needed to
    protect the electoral system from the appearance, or reality of,
    "*quid pro quo*" arrangements between candidates and contributors.
    Other justifications involve promoting political equality amongst
    the citizenry, and ensuring that private interest does not displace
    the democratic practices of deliberation and reason giving. Sunstein
    C (1994) \'Political Equality and Unintended Consequences\':
    *Columbia Law Review,* **94** (4) 1391-1392.

[^5]: Wayne Levere Hays (D-OH) was a famously ardent critic of campaign
    finance reform, never missed an opportunity to exert his will on
    Congress, and the Federal Election Commission, the bipartisan agency
    responsible for enforcement, authorised by the Federal Election
    Campaign Act of 1974. Jackson B (1990) *Broken Promise, Why the
    Federal Election Commission Failed:* United States, Priority Press
    23-24. For an on-line biography of the late Wayne L Hays see
    bioguide.Congress.gov.

[^6]: Most violations were thought to occur at State and local level,
    and the law was essentially couched in negative terms. Limitations
    were placed on sources of political money, sometimes in conjunction
    with contribution and expenditure limits. Alexander H (1976)
    *Financing the 1972 Election*: United States, Lexington Books, 4. As
    election costs rose as the century progressed and Congress failed to
    provide alternative sources of funding, so the money followed the
    path of least resistance. As electoral competition stiffens, so the
    opportunity cost of adhering to the law rises, and the temptation to
    violate the law becomes the rational alternative. As compliance has
    generally relied for the most part on a voluntary ethos, and
    deterrence is poor, the motivation towards non-compliance is
    increased further by the social distance that candidates can
    maintain from their finance committees, and the ability of their
    election lawyers to argue that the impermissible is in fact
    permissible. Gross K (1991) \'The Enforcement of Campaign Finance
    Rules: A System in Search of Reform\': *Yale Law & Policy Review*,
    **9** 286-287.

[^7]: The Federal Election Commission is the bipartisan administrative
    agency charged with enforcing the Federal Election Campaign Act
    1974.

[^8]: Alexander H (1972) *Political Financing*: Minnesota, United
    States: Burgess Publishing, 40. Frank Sorauf commented, 'All this
    regulation scarcely impeded the flow of campaign money. Much of the
    reform legislation, both of Congress and the states, seems to have
    been passed with the loopholes tailored in.' Goider R, Gross D &
    Shields T (1999) *Money Matters: Consequences of Campaign Finance
    Reform in U.S. House Elections*: Maryland, United States, Rowman &
    Littlefield Inc. 23.

[^9]: Historically, the Department of Justice has been unwilling to
    prosecute campaign finance offences, and when they have, alternative
    statutes have often been employed.

[^10]: The executive has often received criticism, especially from good
    government groups and others from an idealist tradition, for not
    making either independent or pro-enforcement appointments to the
    Federal Election Commission.

[^11]: Two examples of political finance abuse by chief executives might
    include President Nixon, and the activities of the finance Committee
    to Re-elect the President in 1972 and the ethically questionable
    practices involving President Clinton\'s re-election campaign in
    1996. The Senate Governmental Affairs Committee conducted
    investigations during 1997 that found the Clinton/Gore 96'
    Re-election Campaign Committee, the Democratic National Committee,
    the AFL-CIO, and other groups, to have 'explicitly violated the
    FECA, or violated the spirit of the FECA.' Practices involved
    soliciting and accepting illegal foreign donations, illegally
    soliciting contributions within the confines of Federal property,
    so-called 'sleep-overs' at the White House, and finally, abuse of
    soft money provisions in the law. Soft money, first created by the
    Federal Election Commission in a ruling made in 1978, and then
    consolidated by the FECA 1979, allowed certain 'party building'
    activities to be carried out which did not come within the remit of
    the FECA. Instead of soft money being spent on voter registration
    drives and grass roots activity like recruiting volunteers, millions
    of dollars were spent, and illegally co-ordinated with Clinton\'s
    re-election efforts. Special Investigation into Illegal and Improper
    Activities Arising from the 1996 Federal Elections, Senate
    Resolution 39, U.S. Senate Governmental Affairs Committee, 1997,
    1-10.

[^12]: The judiciary has often ruled that Congress either does not have
    the power to legislate on a particular matter, as it lacks the
    constitutional authority, or it has ruled that the law infringes
    First Amendment rights.

[^13]: Examples of these groups might include, Common Cause, Center for
    Responsive Politics, Center for Public Integrity, and Democracy 21.
    They often advocate motive-based regulation. This attempts 'to
    distinguish appropriate from inappropriate motives in political
    representation, and to weed out the latter through prohibition, and
    limitation.' Cain B (1995) \'Moralism and Realism in Campaign
    Finance Reform\': *The University of Chicago Legal Forum*,
    111-113*.*

[^14]: A particularly strong advocate of the use of coercion to achieve
    compliance is Professor Kenneth Culp Davis. His views might be
    described as a sub-division of idealism, what Thomas Curtis
    described as a 'neo-Machiavellian tradition.' Davis argued that nine
    tenths of agencies\' desired results were attained through exertion
    of the supervisory power, coercion. Curtis T (1979) \'Reflections on
    Voluntary Compliance Under the Federal Election Campaign Act\':
    *Case Western Reserve Law Review*, **29** 847.

[^15]: Cain B & Lochner T (1999) \'Equity and Efficiency in the
    Enforcement of Campaign Finance Laws\': *Texas Law Review*, **77**
    1913.

[^16]: On September 6 1901, President McKinley was attending the
    Pan-American exposition at Buffalo, New York when he was shot twice
    by Leon Gzolgosz, an anarchist. Pringle H (1931) *Theodore
    Roosevelt*: London, Johnathan Cape, 231.

[^17]: Years later, an accurate picture of the 1904 campaign found that
    Roosevelt had accepted 72.5% of the \$2.2 million received in
    donations from corporate interests. Three particularly high-profile
    contributors were the banker, J.P. Morgan, E. H. Harriman, a
    railroad magnate, and H. C. Frick, from the United States steel
    corporation. Morgan had donated \$150,000, Harriman, \$50,000, and
    raised a further \$200,000, and Frick had given \$50,000. Pringle H
    (1931) 357. The fund-raising activities of Mark Hanna, on behalf of
    McKinley, in 1896, and Roosevelt, in 1904, had provoked the
    attention of reformers. Alexander H (1976) 459. Hanna used a
    systematic method of fund-raising, aimed at corporations and wealthy
    entrepreneurs, which Lance Bennett aptly described as a wealth tax.
    Herbert Croly commented in his biography of Hanna 'he converted the
    practice of soliciting contributions from a matter of political
    begging into a matter of systematic assessment according to the
    means of the individual institution.' Sikes E (1928) *State and
    Federal Corrupt Practices Legislation*: North Carolina, Duke
    University Press, 189. Thus, it was not only the large contributions
    from corporations and wealthy individuals that caused concern, but
    the methods involved in obtaining them.

[^18]: *New York World* October 1 1904.

[^19]: Pringle H (1931) 451 & 453.

[^20]: New York insurance investigations, which uncovered Hanna's wealth
    tax, the Harriman letters, which proved the close financial and
    political relationship between Roosevelt and Harriman, and the grand
    jury investigations into the Metropolitan Railways of New York City,
    all reinforced doubts about the integrity of Roosevelt's campaign
    and the state of political finance regulation generally. Sikes E
    (1928) 183, Overacker L (1932) *Money in Elections*: New York, The
    Macmillan Company, 235.

[^21]: It was Roosevelt who coined the phrase *muckraker,* and
    journalists wore the label as a badge of honour. However, Roosevelt
    used the term as an insult, adulterating the original meaning from
    Bunyan's Pilgrim\'s Progress. Bunyan's muckraker was content to rake
    to himself 'the straws, the small sticks, and dust of the floor,
    blind to the celestial crown that was offered him.' Brogan H (1985)
    *Penguin History of the United States of America*: England, Longman,
    463.

[^22]: Brogan H (1985) 464.

[^23]: Unlike his predecessor, William McKinley, Roosevelt was
    determined to address the problem of corporate greed. Poverty, urban
    slums, corruption, and the damaging effects unregulated capitalism
    had on the environment, society, and the democratic system, all
    needed to be tackled. He had a genuine concern about the natural
    environment, being an active 'outdoors man,' and a famous, if
    bloodthirsty hunter. His reformist urges towards economics were not
    motivated by any desire to promote equality, but were motivated by
    the fear of socialism. Muckrakers like Upton Sinclair, Ida Tarbell,
    and Lincoln Steffens, had deliberately engineered growing public
    disquiet against the excesses of the big Trusts. Pringle H (1931)
    367. Therefore, although many in corporate America felt betrayed by
    Roosevelt, having funded his re-election in 1904, he was determined
    to initiate further regulation of the Trusts. Frick commented,
    'Roosevelt got down on his knees to us. We bought the son of a
    bitch, and he did not stay bought.' www.cleanelections.org 4.3.01.
    Shannon J (1959) *Money in Politics*: New York, Random House, 35.
    Roosevelt not only had a high Tory concern for the good of society,
    but a strong desire to protect capitalist accumulation. Perhaps the
    resurrection of the Sherman Act by Roosevelt in 1902, an antitrust
    law, and the passage of the Tillman Act, were symptomatic of these
    concerns. Harbaugh W (1975) *Life and Times of Theodore Roosevelt*:
    New York, Oxford University Press, 150.

[^24]: Tillman Act was enacted January 26, 1907.

[^25]: Stephenson-Horne M (1990) \'The Road To Hell? The Unintended
    Consequences of Unwise Federal Campaign Finance Reforms\': *Northern
    Kentucky Law Review*, **17** 548.

[^26]: Stephenson-Horne M (1990) 548.

[^27]: Samuel McCall (R-MA) introduced a bill containing disclosure
    mandates. The McCall bill was largely a result of pressure from
    Perry Belmont, a New Yorker, who had experience in raising and
    spending funds on behalf of the Democrats. He was committed to a
    disclosure model of regulation, and founded the National Publicity
    Law Organisation and the later National Publicity Bill Organisation.
    Senate Democrats who saw it as too closely associated with the
    Crumpacker amendments killed the bill. This would have
    re-established complete national supervision of elections, something
    that had been repealed in 1894. Overacker L (1932) 236.

[^28]: The lack of publicity contained in the bill, though supported by
    Roosevelt after he won the presidential election of 1904, was a
    reflection of the distaste for such provisions in Congress. For
    example, Mr. Bliss, treasurer of the National Republican Committee
    during the 1904 campaign, argued that the relationship between the
    committee and its contributors was a confidential one. He said that
    he had persistently refused to make accounts public, likening making
    contributions to the secret ballot at an election. Sikes E (1928)
    196-197.

[^29]: La Forge (1996) 354.
    www.cleanelectionscalifornia.org/private/evolution 4.3.01 &
    www.campaignfinance.org/history 4.3.01.

[^30]: Sikes E (1928) 192.

[^31]: Brogan H (1985) 466-467.

[^32]: *U.S. v United States Brewers\' Association*, 239 Fed Rep.163
    (1916).

[^33]: Sikes E (1928) 192-193.

[^34]: In the early part of this century, before the passage of the
    seventeenth amendment, the office of U.S. Senator could be bought.
    The cost of purchasing the vote of a state legislator was known to
    reach \$20,000 in order to ensure that he supported the preferred
    candidate. Goider, Gross & Shields (1999) 21.

[^35]: Authorities like Earl Sikes and Louise Overacker, the former
    writing in 1928 and the latter in 1932, both seemed reliant on the
    *United States* v *United States Brewers' Association,* 239 Fed 163
    (1916) case. This would be indicative of the Tillman Act's nominal
    enforcement, where academics of the day had to rely on one case in
    their discussions on enforcement. Alternative sources of data
    relating to enforcement of these early Acts have been notoriously
    difficult to obtain. There was for many years a pervasive
    Congressional culture that favoured keeping records inaccessible, or
    destroying them as soon as legally possible.

[^36]: Sikes E (1928) 193.

[^37]: Ewing interprets the case more favourably, stressing the
    importance of the court findings that corporate contributions did
    not infringe free speech or freedom of the press. Ewing K (1988)
    \'The Legal Regulation of Campaign Financing in American Federal
    Elections\': *Cambridge Law Journal*, **47** (3) 376.

[^38]: Better known as the Publicity Act, the 1910 Act was passed June
    25 and mandated disclosure requirements for the House. The Act not
    only encompassed committees, but also sought to include those making
    independent expenditures. All groups who spent more than \$50 on
    trying to influence the outcome of a Federal election had to file
    disclosures. Ewing K (1988) 372. The 1911 Act was enacted August 19
    and extended the disclosure mandate to the upper House, and
    established expenditure limits to House and Senate. Contributions
    over \$100 and expenditures over \$10 were to be reported.
    www.campaignfinancesite.org/history 4.3.01, Gross K (1991) 280.
    Adamany D & Agree G (1975) \'Election Campaign Financing: The 1974
    Reforms\': *Political Science Quarterly*, **90** (2) 202. The 1911
    Act, mandated pre-election and post-election disclosures, and
    broadened the statute to include disclosure requirements and
    spending limits in primaries. Ewing K (1988) 372.

[^39]: This is often referred to as a 'sunshine' model of regulation.
    Public disclosure and openness are likened to 'sunshine'
    disinfecting and preventing tendencies towards political corruption.
    Motivations associated with notions of a *'quid pro quo*'
    relationship are said to be discouraged, as the electorate is not
    only aware of the actions of the Congressman, but also the sources
    of his/her funding. The disclosure model has been an enduring method
    of achieving compliance, and one usually favoured by those like
    Bruce Cain, who argue that all other prohibitions are doomed to
    failure, and circumvention. Campaign finance law that relies on
    disclosure has sometimes been described as the democratic model, as
    it casts the electorate in the role of regulator. It is their
    informed judgement that impinges on the regulated to modify their
    inclination towards reciprocity, in the expectation that obvious
    *'quid pro quo*' behaviour will be punished at the ballot box.
    Motivation-based regulation has a close association with disclosure
    models, yet it tends to stipulate specific prohibitions in terms of
    banned sources of finance and sets contribution limits.

[^40]: House candidates could spend \$5,000 & Senate candidates \$10,000
    on their election campaigns.
    www.cleanelectionscalifornia.org/private/evolution 4.3.01.

[^41]: During the 1950s, approximately one third of electoral districts
    were safely in the hands of one party. Senate subcommittee on
    Privileges and Elections: 84th Congress, 1st session. Testimony
    given by Warren Olney 111, Assistant Attorney General, Department of
    Justice, regarding the Federal Elections Act of 1955, 200.

[^42]: Sikes E (1928) 201.

[^43]: www.brook.edu 7.3.01.

[^44]: www.cleanelectionscalifornia.org/private 4.3.01.

[^45]: www.cleanelectionscalifornia.org/private 4.3.01.

[^46]: Overacker L (1932) 241.

[^47]: www.cleanelectionscalifornia.org/private 4.3.01.

[^48]: www.cleanelectionscalifornia.org/private 4.3.01.

[^49]: www.senate.gov/learning/stat 7.3.01. This Internet web-site
    provides a description of the way in which the Secretary of the
    Senate was elected and contains a historical database that includes
    biographical information on the most notable holders of the Office.

[^50]: www.senate.gov/learning/min 7.3.01.

[^51]: www.cleanelectionscalifornia.org/private/evolution 4.3.01.
    Newberry had spent approximately \$100,000 between December 1 1917,
    and November 5 1918, most of which was spent in the primary,
    pre-nomination period. Alexander H (1972) *Money in Politics*: *The
    History of Reform:* Washington D.C. Public Affairs Press, 200.
    Others, like Pamela Ford, assert that the figure reached \$195,000,
    just for the primary election, though Michigan law only allowed
    primary spending of \$1,875. Ford P (1955) *Regulation of Campaign
    Finance: Pamphlets, Legislative Problems No 6*: Bureau of Public
    Administration, Berkeley, University of California, 20.

[^52]: *Newberry v United States,* 256 U.S. 232 (1921). On the important
    constitutional issue of Congressional jurisdiction over primary
    elections, the court split three ways. Justices McReynolds, Day,
    Holmes and Van Devanter held that Congress had no power to regulate
    senatorial primaries before the seventeenth Amendment, and acquired
    none by its adoption. Justice McKenna held that Congress had no
    power before the Amendment, but might possibly have acquired it
    through the adoption of the Amendment. Justices Brandeis, Clark,
    Pitney and White, argued that Congress always had the authority to
    regulate primaries. However, the Supreme Court gave a unanimous
    opinion, after finding that the jury had been misdirected in the
    original trial, and Newberry won his appeal. Ford P (1955) 20.

[^53]: Gross K (1991) 281.

[^54]: This case centred on determining the balance of power between
    federal and state government. It rejected the narrow constitutional
    interpretation made in *U.S. v Newberry*, 256 U.S. 232 (1921).
    Justice Stone wrote the majority opinion, ' Unless the
    constitutional protection of the integrity of 'elections' extends to
    primary elections, Congress is left powerless to effect the
    constitutional purpose.' *U.S. v Classic,* 313 U.S. 299 (1941).
    Alexander H (1960) 12.

[^55]: Teapot Dome was the name given to the lands owned by the
    government in Wyoming and Elk Hills that contained large oil
    reserves. The area was characterised by domes of rock, and one was
    said to resemble a large teapot.

[^56]: www.polisci.ccsu.edu/trieb/early 8.3.01.

[^57]: The donations were said to be in the region of \$400,000, and
    were used to help pay off the debts of the 1920 election.
    www.jackburden.com/timelines 8.3.01.

[^58]: Gross K (1991) 281. www.cleanelectionscalifornia.org/private
    4.3.01. www.pbs.org/followthemoney/history&humour/timeline 8.3.01.

[^59]: Federal Corrupt Practices Act, 1925, 43 Stat. 1070, passed
    February 28, 1925. Hereinafter referred to as FCPA 1925.
    www.brook.edu/gs/cf/sourcebk/ch2 8.3.01.
    www.polsci.ccsu.edutrieb/early 8.3.01.

[^60]: FCPA 1925, Section 318, sets out the laws repealed by the Act.

[^61]: Stephenson-Horne (1990) 549.

[^62]: Federal Corrupt Practices Act 1925, Section 303 (a) (b) & (c).
    Thus, regulations relating to disbursement disclosures were stricter
    than for contributions, where donations under \$100 only had to be
    disclosed as an aggregate. Ford P (1955) 21.

[^63]: FCPA 1925, Section 305, (a)

[^64]: FCPA 1925, Section 307, (a).

[^65]: FCPA 1925, Section 309, (b) 1.

[^66]: FCPA 1925, Section 309, (b) 2.

[^67]: FCPA 1925, Section 314, (b).

[^68]: Goider, Gross & Shields, support the introductory comment to this
    chapter, when assessing the utility of campaign finance law in the
    1930\'s. \"Reform efforts followed a familiar pattern: concern over
    specific activities; the passage of legislation despite reluctant
    support of politicos; efforts to circumvent the intent of the
    legislation; and finally, little or no enthusiasm for enforcement.\"
    Goider R, Gross D & Shields T (1999) 24.

[^69]: *Burroughs and Cannon* 290 U.S. 534 (1934). This lone case
    involved a member of the clergy, Bishop Cannon, of the Methodist
    Church, and his treasurer, Ada L. Burroughs. The case related to a
    number of reporting violations Cannon had made in the 1928
    presidential election campaign. Bishop Cannon was a staunch
    prohibitionist who campaigned against a 'wet,' Al Smith. Although
    well funded, Bishop Cannon failed to disclose accurate reports, and
    fought a number of Congressional attempts to bring him into
    compliance with the 1925 Act. He argued that the legislation was
    unconstitutional, that he had not knowingly violated the law, and
    that the resolution under which the Nye committee was authorised to
    investigate campaign practices, was also unconstitutional.
    Additionally, many of these temperance groups saw their campaigning
    as moral, not political, and therefore, outside the provisions of
    the Act. Although two out of eleven counts moved to trial, the
    result was an acquittal, despite the court upholding the
    constitutionality of the law, and more specifically, its disclosure
    provisions. It was likely that the authorities did not wish to bring
    the prosecution, but that Cannon forced their hand through his
    direct challenge of the law and his confrontational attitude towards
    investigative committees. The Department of Justice had never
    favoured criminal prosecution for disclosure violations, and one
    might argue that an acquittal based on technicality, was the
    best-case scenario for many. Overacker L (1932) 261-263.
    www.jackburden.com/timelines 8.3.01. U.S. Senate subcommittee on
    Privileges, and Elections: 84th Congress, 1st session. Testimony
    given by Warren Olney III, Assistant Attorney General, Department of
    Justice, regarding the Federal Elections Act 1955, 202. Comment
    (1972) \'Campaign Spending Controls Under the Federal Election
    Campaign Act of 1971\': *Columbia Journal of Law & Social Problems*,
    **8** 298.

[^70]: Alexander H (1963) 68.

[^71]: The Department of Justice failed to collate election offences
    together. Assistant Attorney General Olney testified that violations
    were filed as individual cases, not generically. Olney (1955) 206.
    Consequently, information to aid campaign finance policy making was
    limited and the historical record difficult to establish.

[^72]: Olney testifies that the most blatant criminal violations
    relating to Federal elections are not prosecuted under the Federal
    Corrupt Practices Act, but alternative, much older, civil rights
    legislation. The Civil Rights Section at the Department of Justice
    found it easier to prosecute election offences under laws that
    protected against a conspiracy \'to deprive the people of the
    community of their right to an honest election for Federal
    officials. Olney (1955) 205.

[^73]: Olney (1955) 206.

[^74]: www.cleanelectionscalifornia.org/private/evolution 4.3.0.1. One
    case arising out of the 1970 House elections showed that disclosure
    mandates were treated with contempt by some. Dennis J. Morrisseau,
    running as a Liberty Union candidate for the state of Vermont\'s
    only seat in the House, publicly refused to comply with any
    disclosure laws. He saw them as unenforceable, unenforced, and
    providing no control over campaign spending. He described his action
    as a protest against the \'empty procedure for reporting.\' Aware of
    the penalties for not reporting, he continued to withhold
    disclosures, despite the Clerk trying to persuade him otherwise.
    Deputy Attorney General Kleindienst chose not to prosecute
    Morrisseau, fearing that it would set a precedent, obligating
    Justice to prosecute many others. Alexander H (1972) 226.

[^75]: Heard A (1960) 365.

[^76]: The Department of Justice wanted access to Democratic National
    Party disclosures for the years 1949-52 as part of an IRS
    investigation. Justice also required Republican National Committee
    reports. Heard A (1960) 365-366.

[^77]: Alexander H (1963) 68.

[^78]: Olney testified \'some of the reports filed may not be accurate.
    The absence of adequate procedures to examine or expose
    delinquencies has undoubtedly contributed to inadequate reports.\'
    U.S. Senate, Subcommittee on Privileges and Elections, 84th
    Congress, 1st session, 202.

[^79]: U.S. Senate, Subcommittee on Privileges and Elections, 84th
    Congress, 1st session, 208.

[^80]: Congressional Ethics, *Congressional Quarterly* (1980) Second
    Edition: Campaign Laws & Regulations, Washington, D.C.195.

[^81]: The Political Broadcast Act limited radio and television spending
    by candidates for Federal offices, and for governor and lieutenant
    governor in both primaries and general elections. Adamany D & Agree
    G (1975) 204.

[^82]: Alexander H (1972) 226.

[^83]: By 1969, only three Companies had been prosecuted for breaking
    the ban on political gifts. However, although Justice has been
    traditionally reluctant to prosecute candidates, they did attempt to
    prosecute fourteen corporations for FCPA violations from May 1969 to
    January 1970. Comment (1971) \'Campaign Finances: Lobby Efforts to
    Curb Costs\': *Congressional Quarterly Weekly Report*, May 7 1046.

[^84]: www.campaignfinancesite.org/history/reform 4.3.01.

[^85]: Federal Corrupt Practices Act, 1925, Section 302, (a).

[^86]: Sikes E (1928) 224.

[^87]: Ford P (1955) 22.

[^88]: Overacker commented that by expressly excluding primaries and
    conventions, issues related to the Act\'s constitutionality could be
    avoided. Overacker L (1932) 247.

[^89]: Ford P (1955) 25-26.

[^90]: www.cleanelectionscalifornia.org/private/evolution 4.3.01.

[^91]: Federal Corrupt Practices Act, Section 302, (c). One explanation
    for this narrow definition of committee was that Congress sought to
    derive its authority from the inter-state commerce clause of the
    Constitution.

[^92]: www.cleanelectionscalifornia.org/private/evolution 4.3.01. The
    Act referred to \'knowledge and consent\' regarding gifts and
    expenditures. By having independent committees manage candidates\'
    finances, he, or she, could legally report that they had neither
    received, nor spent, any funds. Comment (1980) \'Congressional
    Ethics\': *Congressional Quarterly Weekly Report*, 195. Maintaining
    social distance from those who spend money on one\'s behalf has been
    an enduring feature of campaign finance practices throughout the
    twentieth century. For example, committee treasurers are responsible
    for compliance with the Federal Election Campaign Act, not
    candidates. One off the record comment by an FEC staffer opined that
    \'being a committee treasurer is a hazardous business.\' Interview
    with the author, Washington D.C. 14.10.01.

[^93]: Alexander H (1984) (3rd Ed) *Financing Politics, Money,
    Elections, & Political Reform:* Washington D.C. Congressional
    Quarterly Press, 33. This definition of what constituted a political
    committee reflected the general lack of constitutional certainty
    over political finance regulation at the time. Congress may have
    been drawing on its authority to make regulations under the
    interstate commerce clause, when it defined what constituted a
    political committee under the Act. Sikes E (1928) 227.

[^94]: Comment (1980) \'Congressional Ethics\': *Congressional Quarterly
    Weekly Report*, 195.

[^95]: Ford P (1955) 21.

[^96]: Although spending on the 1968 Congressional campaigns had risen
    to approximately \$50 million, something that could at least in part
    be attributed to rising costs, the amounts reported as spent were
    \$689,032 less than 1964 campaigns. Additionally, 182 Congressional
    candidates filed reports asserting that they had no personal
    campaign income and no committee expenditures that had to be
    reported. Comment (1971) \'Campaign Spending: How To Cut Costs\':
    *Congressional Quarterly Weekly Report*, March 26, 713.

[^97]: Sikes noted that this strategy was employed to bolster the
    inherent weaknesses in the 1925 Act. However, Sikes discusses the
    many reservations he has about informal regulation. Issues of
    concern to him were that no definite norm is established to which a
    candidate must conform, the regulatory power may be abused for
    partisan reasons, and affected by a tyranny of the majority.
    Finally, he argued, voters from the particular state in question
    were likely to feel that the Senate arbitrarily set aside their
    democratic voice. Sikes E (1928) 241.

[^98]: Senate special committee investigating expenditures in Senatorial
    Primary and General elections (69th and 70th Congress\' 1926-1928).

[^99]: Mr. Smith received large contributions (\$200,000) from public
    utility companies, whilst sitting as Chair of the Illinois Commerce
    Commission. This body regulated the rates public utility companies
    could charge, along with determining the services they were to
    provide. Eighty percent of Smith\'s campaign funds came from three
    individuals, something that was seen as a conflict of interest, if
    not an obvious *quid pro quo* arrangement. Sikes E (1928) 233.

[^100]: Sikes E (1928) 241.

[^101]: Sikes E (1928) 236.

[^102]: U.S. Senate, Special Committee Investigating Presidential
    Campaign Expenditures, 70th Congress, 1st & 2nd session, 1928.

[^103]: U.S Senate, Subcommittee of the on the Judiciary, 71st Congress,
    2nd session, 1929-1930.

[^104]: U.S. Senate, Select Committee on Senatorial Campaign
    Expenditures, 71st Congress, 2nd session, 1930-1931.

[^105]: Overacker L (1932) 285-286.

[^106]: William Langer, a Senator from North Dakota, was investigated
    after the results of his election were contested. Senate Committee
    on Privileges and Elections investigated accusations involving
    breaches of political ethics (77th Congress, 1st session).

[^107]: The Senate Subcommittee on Privileges and Elections investigated
    Herbert O'Conor, from the state of Maryland, after his 1946-election
    success was contested. Senator O\'Conor was eventually seated in May
    1948 after defending himself against accusations that he violated
    the Federal Corrupt Practices Act and the Hatch Act.

[^108]: Senate Subcommittee on Privileges, and Elections 84^th^
    Congress, 1st session, 288-300.

[^109]: Senate Subcommittee on Privileges, and Elections 84th Congress,
    1st session, 288-300.

[^110]: The Senate has resorted to censure only five times in its
    history. Alexander H (1972) 224.

[^111]: Denying a Congressman elect his/her seat has been used sparingly
    for a number of reasons. Firstly, it causes partisan and
    constitutional disagreement (many believing that Congress does not
    have the power to do so). Secondly, elections have to be repeated,
    as American culture tends to abhor awarding the seat to a defeated
    candidate. Thirdly, substantive action generates accusations of
    being a bad loser, and may provoke retaliation. Alexander H (1963)
    69.

[^112]: Jackson B (1990) 25.

[^113]: Berry J & Goldman J (1973) 'Congress and Public Policy: A Study
    of the Federal Election Campaign Act 1971': *Harvard Journal on
    Legislation*, **10** 343.

[^114]: President Kennedy's Commission on Campaign Costs recommended the
    setting up of a Registry of Election Finance. This was to be a
    bipartisan body, charged to receive, examine, tabulate, summarise,
    publicise, and preserve reported data. Although the enforcement
    powers of this body were not set out, simply recommending, 'that it
    help to police and enforce political financing regulations,'
    Kennedy's assassination meant that the political will to fulfil the
    recommendations disappeared. Presidential Report (1962) \'Text of
    the President's Recommendations on Campaign Financing\':
    *Congressional Quarterly Weekly Report*, June 1, 949. Comment (1962)
    \'Campaign Finance Report\': *Congressional Quarterly Weekly
    Report,* June 20, 650.

[^115]: Jackson B (1990) 24.

[^116]: Berry J & Goldman J (1973) 340-341.

[^117]: In 1970, Republican Party committees outspent Democratic ones by
    3 to 1. Seventeen Republican committees spent \$12.7 million, whilst
    eighteen Democratic committees spent \$4.3 million. Democratic
    candidate committees spent \$6.6 million, compared to \$5.9 million
    by Republican candidates. Comment (1971) \'Campaign Spending: Record
    \$42.4 million in 1970\': *Congressional Quarterly Weekly Report,*
    July 23, 1570.

[^118]: Berry J & Goldman J (1973) 345.

[^119]: Wayne Hays (D-OH) had a fearsome reputation in Congress, and
    had, 'become known for his cantankerous and often unpredictable
    behaviour, making him a hard man to deal with.' Berry J & Goldman J
    (1973) 345 & 352.

[^120]: Berry J & Goldman J (1973) 351. Jackson B (1990) 26.

[^121]: Speaking some years later, Hays ironically commented, 'Pressure
    became fairly intense in the Congress to do something because the
    Corrupt Practices Act was honoured more in the breach than it was in
    any other fashion. I don't recall that there was ever a prosecution
    or that even anybody raised an eyebrow about anybody's campaign
    expenditures, and it seemed to a good many people that they were
    getting out of hand. A lot of things were going on that shouldn't go
    on.' Gross K (1991) 282.

[^122]: Berry J & Goldman J (1973) 361.

[^123]: Jackson B (1990) 25.

[^124]: Berry J & Goldman J (1973) 354.

[^125]: Jackson B (1990) 25.

[^126]: The Federal Election Campaign Act of 1971: Pub L. No. 92-225.
    Referred to as FECA 1971.

[^127]: The Finance Committee to Re-elect the President (President
    Nixon\'s chief finance committee for the 1972 election) solicited
    large donations in the final weeks before the effective date of the
    FECA 1971. FCRP offered the inducement that contributions received
    before April 7 would remain confidential, and that post April 7
    contributions would have to be disclosed. The 1925 Act did not
    provide for any disclosure requirements for contributions made to
    fund the nomination of a presidential candidate. During the
    Watergate hearings, Sloan testified that the Committee received an
    \'avalanche\' of contributions during the last five days before
    April 7th, and that he handled \$6 million in contributions in the
    two days before the deadline. It was during this period that the
    Nixon campaign received two of its largest donations: \$2 million
    from W Clement Stone, and \$1 million, from Richard Mellon Scaife.
    www.jackburden.com/timelines. Additionally, to reduce the reported
    cash on hand, a requirement of the 1971 Act, FCRP prepaid for
    \$3,787,480 of media services that would be used after April 7th.
    Although the FCRP was used as a good generic example of this
    activity, many Democratic campaigns acted in a similar way. Schorr D
    (1974) (Ed) *The Senate Watergate Report*: **2** 151-152.

[^128]: Although Michael Carroll disagrees, commenting that the 1971
    FECA was passed in response to scandal, he offers no evidence to
    support his claim. Carroll M (1996) \'When Congress Just Says No:
    Deterrence Theory and the Inadequate Enforcement of the Federal
    Election Campaign Act\': *Georgetown Law Journal,* **84** 552.
    Although scandal has never really been absent from political finance
    regulation, what preceded the passing of the 1971 Act, could not be
    compared with the activities surrounding the 1907 election, the 1922
    TeaPot Dome scandal, or Watergate. For evidence that might give some
    weight to Carroll\'s argument, see Alexander H (1976) 5, where he
    discusses the cases of Bobby Baker and Tom Dodd.

[^129]: The Senate Select Committee on Presidential Campaign Activities,
    almost universally known as the Watergate Committee, investigated a
    multiplicity of criminal and civil violations, related to the 1972
    election. Perhaps the most well-known offence involved keeping large
    secret funds held in cash, which were used to pay for illegal
    activities such as the break-in at the Democratic Parties HQ in
    Washington D.C., something that was to provoke further scrutiny of
    the Nixon campaign. Other offences included loaning large sums to
    preferred candidates in order to make their fund-raising dinners
    appear more successful (Alexander Lankler received \$50,000 to make
    a fund-raiser honouring Vice-President Agnew look a popular
    success), illegal contributions were received, and records were
    either inaccurate, or destroyed. Ervin S (1980) *The Whole Truth,
    The Watergate Conspiracy*: Random House, New York, 139-144. Most of
    the hearings, which largely concerned the activities of President
    Nixon\'s Campaign to Re-elect the President (CREEP), and the Finance
    Committee to Re-elect the President, (FCRP), were held from May 17
    to August 7. After a recess, the Committee reconvened from September
    24 to November 15. This, and other Congressional hearings, led to
    President Nixon's impeachment, and subsequent resignation on August
    8 1974, in view of the overwhelming likelihood of a guilty verdict
    in the U.S. Senate. School D (Ed) (1974) 8.

[^130]: Comment (1972) 286.

[^131]: Berry J & Goldman J (1973) 334.

[^132]: Chairman of the New York Liberal party commented \'Quite
    literally, you must either be a very rich man, or have very rich
    relatives, or make yourself beholden to rich corporate executives or
    the underworld to get elected to almost any office in the United
    States.\' Comment (1972) 286.

[^133]: Berry J & Goldman J (1973) 334.

[^134]: In 1968, testimony given before the Senate Subcommittee on
    Communications, Joseph Califano, general council to the Democratic
    National Committee, warned of the \'insidious danger that large
    contributors, by reason of their enormous wealth alone, can
    influence foreign or domestic policy to suit their personal
    prejudices.\' Comment (1971) 712.

[^135]: Alexander H (1976) 5.

[^136]: Senate 3637, 91st Congress, 2nd session, 1970.

[^137]: Berry & Goldman offer a number of explanations why Nixon chose
    to veto the bill. Firstly, that if spending was restricted on radio
    and television, candidates might be forced to use more expensive
    techniques. Secondly, that restrictions on broadcast spending, not
    broadcast time, was discriminatory, as media prices vary widely
    between geographical regions. Thirdly, he said that the bill would
    benefit the better known incumbents, and finally that it was rate
    setting by legislation. However, self-interest was perhaps the most
    convincing reason. President Nixon was determined to win a second
    term, and any delay in passing regulations on spending would benefit
    his re-election campaign. Therefore, it was expedient to promise
    more comprehensive legislation in the future, as this would not
    affect him personally. The effect this might have had on future
    Republican candidates may not have concerned him, as he tended not
    to work at cultivating relationships with either party in Congress.
    D Truman supported this view: \'The White House displayed little
    positive interest in this significant legislation, and the Nixon
    Administration often failed to communicate its views clearly to the
    Republican Congressional leaders.\' Berry J & Goldman J (1973) 363.
    In the light of Watergate, it was ironic that President Nixon\'s
    veto message included the comments \'I am opposed to big spending in
    campaigns as I am to big spending in government,\' and he then
    praised the \'highly laudable, and widely supported goals of
    controlling political campaign expenditures.\' Comment (1971) 712.

[^138]: After vetoing the 1970 Political Broadcast Act, President Nixon
    wrote a letter to Senate Minority leader Hugh Scott, reassuring him
    that the Administration would work closely with Congress in the near
    future to draft a more comprehensive Bill. Berry J & Goldman J
    (1973) 336. Scott was largely responsible for sustaining the veto
    after undertaking to press for reform early in the next Congress.
    Comment (1972) 292.

[^139]: Berry J & Goldman J (1973) 334.

[^140]: Stephenson-Horne M (1990) 550.

[^141]: Burke D (1995) 359.

[^142]: Ewing K (1988) 388. The Act provided for 'the establishment,
    administration, and solicitation of contributions to a separate
    segregated fund to be utilised for political purposes by a
    corporation or labor organisation provided, that it be unlawful for
    such a fund to make a contribution or expenditure by utilising money
    or anything of value secured by physical force, job discrimination,
    financial reprisals; or the threat of force, job discrimination, or
    financial reprisal; or by dues, fees, or other monies required as a
    condition of membership in a labor organisation or as a condition of
    employment; or by monies obtained in any financial transaction.\'
    Comment (1972) 297.

[^143]: Burke D (1995) 359. See Appendix A, for a more detailed
    description of the FECA (1971) provisions.

[^144]: McCoy L (1974) 'Recent Reforms and the Consequences: GAO's
    Responsibilities in Federal Elections': *Policy Studies Journal*,
    **11** (4) (summer) 244.

[^145]: Comment (1972) 295.

[^146]: Berry J & Goldman J (1973) 357.

[^147]: The GAO tended to propose regulations that were stricter than
    either the Secretary of the Senate or Clerk of the House would
    allow. Alexander (1976) 13. For example, the GAO proposed that if a
    committee Treasurer could not obtain all the necessary information
    relating to the origin of a contribution over \$500, it was to be
    returned. After negotiation, the GAO proposals were watered down to
    read that treasurers were only to make 'best efforts' in obtaining
    contributor information. The GAO also proposed the use of social
    security numbers for identification purposes; again, Jennings and
    Valeo rejected this. Congressional officers also proposed that
    definition of 'filing' meant actually mailing the report. This
    interpretation would negate any usefulness of the pre-election
    report. However, after a meeting between the three officers in March
    1972, the stricter definition of delivery before the declared date
    was adopted. A more pragmatic and valid regulation was proposed by
    Congressional officers regarding citizen complaints. The GAO had
    wanted to draft a form that any citizen could fill in, alleging a
    complaint. This was successfully resisted by Jennings and Valeo, who
    also insisted that any complaints be notarised, in order to
    discourage frivolous complaints. Finally, the GAO did make one
    important permissive regulation dealing with negative campaigning in
    the media. Congress failed to determine whether unauthorised
    advertisements criticising candidate A, urging his defeat, should
    count against B's spending limits. The GAO, perhaps wishing to avoid
    a constitutional challenge in the courts over free speech
    protections, chose not to count such expenditures against candidate
    A's limits. Berry J & Goldman J (1973) 358-360.

[^148]: Alexander H (1976) 10.

[^149]: Alexander H (1976) 16.

[^150]: McCoy L (1974) 247. Alexander H (1976) 16.

[^151]: McCoy L (1974) 245-246.

[^152]: Alexander H (1976) 15-16. For a more comprehensive list of GAO
    violation profiles, see appendix B.

[^153]: McCoy L (1974) 247.

[^154]: Alexander H (1976) 17.

[^155]: For a more detailed examination of the violations committed by
    Nixon and McGovern arising from the 1972 presidential election, see
    appendix C.

[^156]: Alexander H (1976) 620.

[^157]: After pressure from the public integrity group, Common Cause,
    Hays backed down on the issue of photocopying costs, reverting back
    to 10 cents. However, it was only after Jennings was sued in the
    Federal Court by Common Cause that the matter was successfully
    adjudicated. Alexander H (1976) 22.

[^158]: Alexander H (1976) 21.

[^159]: Alexander H (1976) 11-12.

[^160]: Alexander H (1976) 23.

[^161]: Alexander H (1976) 12.

[^162]: Comment (1980) \'Campaign Laws & Regulations\': *Congressional
    Quarterly Weekly Report,* 197.

[^163]: Alexander H (1972) 42.

[^164]: Burke D (1995) 359.

[^165]: Alexander H (1972) 42.

[^166]: In 1971, a full page advertisement in the Sunday New York Times
    cost \$10,000. Comment (1972) 312.

[^167]: McCoy L (1974) 246.

[^168]: McCoy L (1974) 246.

[^169]: Alexander H (1976) 25.

[^170]: Comment (1980) 'Campaign Laws & Regulations': *Congressional
    Quarterly Weekly Report*, 197.

[^171]: Burke D (1995) 360.

[^172]: After approximately one quarter of the total GAO referrals had
    been made to the Department of Justice, the Comptroller General
    urged the Attorney General to 'take the initiative with regard to
    reported violations of the Federal Election Campaign Act.' Director
    Hughes also doubted the deterrent value of the few cases that were
    prosecuted, after the Finance Committee to Re-elect the President
    was given a small fine for serious violations. The case involved
    failing to report a \$200,000 contribution, failure of the committee
    to keep a record of the contribution, and failure to report any
    personal details of the contributor. The Finance Committee to
    Re-elect the President was fined \$3,000 on 20th June 1973.
    Alexander H (1976) 31.

[^173]: Comment (1980) \'Campaign Laws and Regulations\': *Congressional
    Quarterly Weekly Report,* 197.

[^174]: The post of Attorney General has been awarded to successful
    presidential campaign managers. John Michell was appointed by
    Richard Nixon, Robert Kennedy by John Kennedy, Herbert Brownell by
    Eisenhower, and J. Howard McGrath by Truman. Alexander H (1976)
    28-29.

[^175]: Alexander H (1976) 29.

[^176]: Common Cause initiated legal action against President Nixon's
    Campaign to Re-elect the President, forcing them to disclose that
    they had raised \$16.8 million from 124 individuals, just prior to
    the April 7 1972 deadline, the effective date that the 1971 Act came
    into force. Their 1972 Congressional campaign finance monitoring
    project-publicised amounts spent, the financial advantage of
    incumbents, and special interest donations. Adamany D & Agree G
    (1975) 205-207. Common Cause was founded in 1970 by John W. Gardner.
    Gardner, a Republican who had served in the Democratic
    administration of Lyndon Johnson, in 1965, as Secretary of Health,
    Education, and Welfare. Frustrated at seeing resources for social
    programmes being squandered on the Vietnam War, despite mass
    protest, he resigned his post in 1968. Gardner felt that money was
    able to buy political outcomes, something that the secrecy that
    surrounded political finance regulation made possible. The group,
    which by 1973 had 300,000 well educated-members, campaigned on a
    number of related issues which included campaign finance secrecy,
    advocating 'sunshine' laws, and public financing of election
    campaigns, and abolishing the seniority system in Congress where
    committee posts and promotion were determined by length of service.
    www.virginia.edu/history 19.1.01.

[^177]: Burke D (1995) 'Twenty Years after the Federal Election Campaign
    Act Amendments of 1974: Look Who\'s Running Now': *Dickinson Law
    Revie*w*,* **99** 359. Ewing K (1988) 388.

[^178]: 12% of Americans had made political finance donations in 1972,
    the same percentage as 1960 and 1964, despite nominal tax incentives
    to do so. Adamany D & Agree G (1975) 206.

[^179]: Light L (1980) \'Reform-spawned Agency Stirs Discontent\':
    *Congressional Quarterly Weekly Report*, April 19, 1019.

[^180]: David P (1976) \'The Federal Election Commission: Origins, and
    Early Activities\': *National Civic Review*, **65**, 278.

[^181]: Forty state legislatures had passed campaign finance reform by
    1973, with Iowa, Minnesota, Montana, Rhode Island, and Utah
    initiating a tax check off system to encourage voluntary donations
    and New Jersey being the most progressive by setting up a system of
    matching grants for private donations. Adamany D & Agree G (1975)
    207.

[^182]: In order to avoid trouble at the Republican National Convention,
    Liddy has proposed a \$1 million plan to abduct Nixon opponents.
    Other 'employees' were to beat up demonstrators. Liddy suggested
    that political intelligence could be obtained from Democratic
    officials through the use of \'call girls,\' and secret recording
    devices, placed on a yacht in Miami Beach. After Nixon officials
    determined that the plan was too expensive, Liddy concentrated on
    proposals that cost \$500,000, and involved wiretaps and
    photography. This was also deemed too expensive. Alexander H (1976)
    39-40.

[^183]: Although the original Watergate break-in was code named
    Gemstone, all political intelligence activities of the Nixon
    administration, unethical as well as illegal ones, were given the
    name of a precious stone. Gordon Liddy recently described how the
    number of intelligence operations led them to run out of precious
    stone names, having to use semi-precious stones, and then rocks. BBC
    documentary, Watergate, and the Cover-up, Discovery Productions,
    part 1.

[^184]: This was not the first time that the Cubans had been used to
    carryout illegal political intelligence. Dr. Daniel Ellsberg, an
    U.S. government defence analyst, had released the 'Pentagon Papers,'
    46 volumes of which detailed American involvement in Southeast Asia.
    This provoked damaging coverage in the press, and imbued a sense of
    paranoia in the Nixon administration concerning security leaks and
    privacy of correspondence. White House officials, John Ehrlichman,
    Presidential advisor, Charles Colson, White House lawyer, Gordon
    Liddy, and others, hired the Cuban refugees to break into the
    offices of Dr. Lewis J. Fielding, Ellsberg's psychiatrist. The
    rationale for the break-in, carried out in September 1971, was to
    gain damaging medical information about Ellsberg, and then use it to
    commit a character assassination. However, the plan was to gain
    entry, and leave undetected. Unsupervised, the Cubans broke windows
    and locks, broke into filing cabinets, and ransacked the office.
    Ellsberg was put on trial by the end of 1972, and was charged with
    espionage. However, as the activities of the administration came to
    light, Judge W. Matthew Byrne, Jr. called for a dismissal of the
    charges on 2nd May 1973. As the Watergate cover-up trials concluded,
    those involved in its planning and implementation were gaoled.
    Alexander H (1976) 581-582.

[^185]: Jack Anderson, a newspaper journalist, had become a thorn in the
    side of the Nixon administration, and was therefore placed on 'the
    enemies\' list.' The enemies\' list was reserved for those
    individuals who were either seen as unpatriotic, or just critical of
    the administration. Once on the list, they became targets of either
    unethical or illegal political intelligence activities. BBC
    documentary, Watergate, and the Cover-up, Discovery Productions,
    part 1.

[^186]: The rationale behind gaining secret intelligence about O'Brien,
    was that Nixon's officials thought that he had potentially damaging
    information about the Administration. Therefore fear and the need to
    procure leverage on O'Brien explained why he was targeted.

[^187]: This was not the first time that Cuba had been used as a cover
    story for Watergate activities. The Cuban Americans (referred to by
    President Nixon as 'jackasses') hired to break into the Watergate
    building were duped by administration stories that Castro was
    financing McGovern. Senate Select Committee on Presidential Campaign
    Practices, volume 2, 12.

[^188]: Alexander H (1976) 39-76.

[^189]: The evidence against Agnew, which was related to other court
    cases in Maryland, was so serious and so compelling that the
    Department of Justice was minded to proceed on all charges. However,
    they offered him a plea bargain, as Watergate had already been very
    damaging to American democracy. He would plead *nolo contendere*
    (Latin: \'I will not defend it\') to one charge of felonious tax
    evasion, in return for discontinuing the more serious charges.
    Additionally, as part of the agreement, Justice published a
    forty-page report detailing his extortion of bribes by using the
    pretence of accepting campaign contributions. Alexander H (1976)
    579, Brogan H (1985) 688, Mosher F (1974) (Ed) *Watergate,
    Implications for Responsible Government*: New York, Basic Books,
    87-88.

[^190]: Alexander H (1976) 579.

[^191]: BBC documentary, Watergate, and the Cover-up, Discovery
    Productions, Part 4.

[^192]: The Special Prosecutor\'s office was comprised of the Watergate
    Task Force, Campaign Contributions Task Force, and the Dirty Tricks
    Task Force. After pressing for the disclosure of the White House
    tapes, Nixon offered a compromise where he would disclose written
    transcripts, prepared by Senator John Stennis. Many years later,
    some of Nixon's former officials described this proposal as
    laughable. Stennis was in his dotage and very hard of hearing. They
    found it particularly amusing that he would have signed for the
    authenticity of transcripts that he would have been unable to hear.
    Cox remained adamant about the tapes, and initiated further
    investigations concerning Nixon\'s San Clemente home, which was
    allegedly funded using taxpayers money. This resulted in Cox\'s
    being sacked by Robert Bork, Acting Attorney General, after the
    previous incumbent of the office, William Ruckelshaus, had resigned
    rather than sack Cox. The Texan, Leon Jaworski, replaced Cox. Senate
    Select Committee on Presidential Campaign Activities, **2** 14.
    Alexander H (1976) 68. BBC documentary, Watergate, and the Cover-up,
    Discovery Productions, Part 4.

[^193]: Nixon had finally sealed his own fate, by taping all his Oval
    Office conversations for a book dedicated to his political memoirs.
    One particular conversation that was recorded disclosed how Nixon
    and Haldeman had attempted to mislead the FBI to delay their
    investigation. Alexander H (1976) 40-41. If Nixon had co-operated
    with investigators as soon as it became clear what had been carried
    out in his name, he may well have ensured his political survival.
    Though the tapes proved Nixon had authorised the payment of hush
    money, it was unlikely that he knew anything about the intention to
    break into the Watergate building. Nixon had not appointed all \'yes
    men\' (they argued fiercely all the time) to his administration, but
    total loyalists, who would resort to actions unethical or illegal
    for what they saw as the greater good, or the wider picture. Brogan
    H (1985) 685. Nixon failed to comply with the subpoena. This was
    justified by citing executive privilege, which ensures that the
    President is able to consult advisors, without the necessity of
    public disclosure. Mosher F (Ed) (1974) 82. However, on July 24
    1974, the Supreme Court ruled by 8 to 0 that the tapes must be
    disclosed to investigators. *The New York Times*, July 25 1974, 1.
    As other evidence suggested that the President had been involved in
    illegal activity and the tapes were essential in determining factual
    questions of alleged wrong doing, executive privilege did not apply.
    Article III of impeachment adopted by the House Judiciary Committee
    was largely comprised of charges relating to the withholding of
    evidence. *New York Times,* July 31 1974, 1.

[^194]: The description 'cash on hand' is a technical term used to
    denote ready cash available. Cash as a campaign resource has
    traditionally been discouraged, as it is almost impossible to trace,
    and may encourage *malum in se* and *malum prohibitum* violations.

[^195]: Ervin S (1980) 139.

[^196]: July 16 1973 was perhaps the most dramatic moment of the Ervin
    hearings, when Alexander Butterfield, a former White House aide,
    revealed the existence of a taping device in the Oval Office.
    Alexander H (1976) 67.

[^197]: Although the Ervin committee did not publish their report until
    the summer of 1974, after the Senate had already passed campaign
    finance measure S 3044, reform was still very much in its infancy.
    Therefore, not only did its preliminary findings have an impact on
    the drafting of S 3044, but also committee proposals still had an
    influence on the macro debate, as reform was not achieved until
    January 1975.

[^198]: \'Assessed/assessment\' is an acknowledged technical term that
    is used to describe attempted extortion of corporate funds by
    politicians and fundraisers. Colloquially, the term has been
    described as a 'shakedown.' See footnote 12, for its early history.

[^199]: A \$200,000 office of economic opportunity contract that was
    awarded to a Washington consulting firm that was headed by an
    employee of the National Hispanics Finance Committee. The Committee
    was a branch of the FCRP and was deemed by anti-poverty groups to be
    a waste of money. Testimony before the Ervin committee set out that
    Federal funds for grants, contracts, loans and subsidies were to be
    used to reward supporters of Mr. Nixon\'s re-election. \'Ervin Panel
    Sees White House Plot in 72' to Divert the Executive in Nixon
    Drive\': *The New York Times*, Monday, June 10, 1974, 1 & 24.

[^200]: On another occasion, a consulting firm that was deemed to be
    close to the Democratic National Committee and a union leader from
    the farming industry, were removed from a small business
    administration programme that previously enjoyed preferred status in
    competing for government contracts. *The New York Times*, June 10,
    1974, 24.

[^201]: A Mr. Frederick V. Malek, former special assistant to the
    President, headed this programme, which started in the spring of
    1971, and ended with the discovery of the Watergate break-in.
    Although the programme was largely designed to deliver votes and
    contributions from the black and the Spanish-speaking community
    'through a selective funding approach,' the FCRP exploited the
    perception that executive departments were responsive to the
    political needs of the administration, and would act against
    opponents and the uncooperative. Though not all departments were
    willing to be used in this manner, some were. The General Services
    Administration, the Office of Minority Business Enterprise, the
    Department of Health, Education, and Welfare, and several other
    executive departments were willing to make government decisions
    based on the political advantage they might generate for Nixon's
    re-election campaign. *The New York Times*, June 10, 1974, 24. As
    many corporations were awaiting executive decisions affecting their
    businesses, awareness of the Incumbency Responsiveness Programme may
    well have minded them to comply with the contribution request. Ervin
    Committee, (1974) **2** 8. This scenario was perhaps qualitatively
    different from the more traditional criticisms of a *quid pro quo*
    arrangement. Avoiding harm and gaining a fair hearing from the
    executive may well have been top of their agenda, though they would
    have been aware that their competitors would also have been
    approached for funds. Therefore, competition may well have driven
    corporations to make contributions. Ironically, often those who made
    large contributions to the FCRP, as American Airlines did, had
    important executive decisions made against them. Ervin (1974) 9. For
    a more comprehensive discussion of the Incumbency Responsiveness
    Programme, see Alexander H (1976) 472-475.

[^202]: Reimbursement schemes can involve a corporation making conduit
    payments to a number of its executives, who in turn use the money to
    make political donations to their companies\' preferred candidates.
    The contributions appear individual and personal, not corporate.
    However, journalists with only moderate experience can uncover this
    type of nefarious activity, as the contributions often have
    suspicious characteristics. Some executives were not realistically
    able to afford to give large donations from their salary. Making
    such donations could raise suspicion. Executives have contributed
    similar or identical amounts as their colleagues, the reason being
    that a large figure is sub-divided between individuals so as to
    appear within the contribution limits. However, this is quite crude,
    and appears contrived.

[^203]: Some of the high-profile corporate contributions investigated by
    the Ervin committee included the following: American Airlines made a
    \$100,000 donation to the FCRP, after a solicitation by Kalmbach,
    the former personal attorney of the President. After the Common
    Cause suit against the FCRP, the money was returned to American
    Airlines, who were subsequently prosecuted and fined \$5,000. Ervin
    (1974) 6-11. American Ship-Building Company delivered a \$100,000
    donation to the Committee to Re-elect the President (CRP), after a
    solicitation by Kalmbach. Though there was some question as to the
    origin of the funds, as \$75,000 was said to have been contributed
    by George Steinbrenner, Chairman and Chief Executive Officer of the
    Company, the remaining \$25,000 was deemed to be corporate funds.
    The contribution was disguised by attributing it to eight company
    executives. These employees were awarded fictitious bonuses of
    \$5,000, which were in turn handed over as personal cheques for
    \$3,000 to Robert Bartlome, Corporate Secretary. The excess was paid
    in tax or into a company political fund. The \$100,000 in total was
    passed onto Kalmbach. Again, prosecutions were brought against a
    number of company employees, including Steinbrenner. Ervin (1974)
    11-21. Ashland Oil Company made a \$100,000 contribution to the FCRP
    after a solicitation by Maurice Stans to Orin Atkins, Chairman of
    the Board, and CEO. The payment was funded from an African
    subsidiary, with funds being funnelled through a Swiss bank account.
    Atkins testified before the committee that he felt under
    considerable pressure to make the contribution. Senator Ervin: 'Mr
    Atkins, it looks to me as if Mr. Stans had made an assessment.' Mr
    Atkins: 'I think that is a correct assessment.' Senator Ervin: 'In
    other words, he told you in effect that he would let you off with a
    contribution of \$100,000, plus a \$10,000 advertisement in the
    convention paper.' Mr. Atkins: 'I believe you are right.' Senator
    Ervin: 'He never left you much option in the matter, did he?' Mr
    Atkins: 'I don't believe so. It is true that I didn't have much of
    an option.' Ervin (1974) 24. The company was fined \$5,000 for
    making an illegal contribution, and Atkins was fined \$1,000. Ervin
    (1974) 27. Harding Lawrence, of Braniff Airways, made an initial
    \$10,000 contribution to FCRP on 1st March 1972. Although the
    recipient, Stans, thanked him, he asked for \$100,000 as Braniff,
    'was doing much better than the rest of the industry.' Ervin (1974)
    25. Braniff eventually contributed \$40,000 in corporate funds,
    which was made through a Panamanian conduit. Braniff was fined
    \$5,000, and Lawrence, \$1,000. Ervin (1974) 24-27. GoodYear Tire
    and Rubber Company made two \$20,000 corporate contributions to the
    FCRP, in cash, obtained through a Swiss account. The company used a
    number of company employees to falsely attribute the donations to,
    after Stans made it clear that the initial donation was inadequate.
    Ervin (1974) 28-32. Prior to April 7 1972, Gulf Oil Corporation made
    a \$50,000 donation to the FCRP, after Mr. Lee Nunn made a
    solicitation to Claude C. Wild Jr, VP of government relations Gulf
    Oil. They also made much smaller donations to Democratic candidates.
    Mr Nunn did not seem satisfied with the initial contribution, and
    arranged a later meeting between Stans and Wild. Stans was Secretary
    of Commerce at the time, just prior to his move to a more overtly
    political role in the FCRP. Wild testified that he felt compelled to
    make an additional payment of \$50,000, which he did. Ervin asked
    him to elaborate on the alleged pressure to contribute. Wild said,
    'I considered it considerable pressure when two cabinet officers and
    an agent of one of the committees that was handling the election
    asking me on various occasions that I have enumerated, the times
    that I have enumerated, asking me for funds- that is just a little
    bit different than somebody collecting for the Boy Scouts.' Ervin
    (1974) 33-36. Associated Milk Producers Inc. were fined \$35,000 on
    August 1 1974, after making \$280,900 in illegal corporate
    contributions. In particular, \$100,500 was contributed to the 1968,
    1970, and 1972 campaigns of Democrat Hubert Humphrey, with other
    large donations being made to FCRP. \'\$35,000 Dairy Co-op Fine
    Levied for Election Outlays\': *New York Times*, August 2, 1974, 1.
    Other corporations making illegal political donations to Nixon
    committees and Democratic candidates Wilber Mills and Hubert
    Humphrey, included; Lehigh Valley Co-operative Farmers Inc,
    Minnesota Mining and Manufacturing Co, Northrop Corp, and Phillips
    Petroleum Co. Ervin (1974) 49-60.

[^204]: *Watergate, Special Prosecution Force, Report*: October 1975,
    78.

[^205]: Ervin (1974) 64.

[^206]: Those desirous of an appointment would be attributed to certain
    visibility or recognition classes. These classes would be
    differentiated by \$25,000 cut-off points. Serious contenders might
    join the '100 Club,' which was reserved for the \$100,000-plus
    contributor. Ervin (1974) 81.

[^207]: Roy Carver, Chairman of Bandag, gave \$257,000 of corporate
    stock to Nixon's re-election campaign in the hope of gaining an
    ambassadorship. Despite a number of interviews in White House and
    State Department, he was unsuccessful. Some of the high-profile
    ambassadorial contributions were as follows;

    [Country]{.underline} [Name]{.underline} [Contribution]{.underline}

    Great Britain Walter Annenberg \$250,000

    Switzerland Shelby Davis \$100,000

    Luxembourg Ruth Farkas \$300,000

    Belgium Leonard Firestone \$112,600

    Netherlands Kingdon Gould \$100,900

    Austria John Humes \$100,000

    France John Irwin \$50,500

    France Arthur Watson \$300,000

    Ireland John Moore \$10,442

    Total:\$1,324,442 Ervin (1974) 64-69.

[^208]: Comment (1974) \'Watergate Committee: Toward Tighter
    Regulations\': *Congressional Quarterly Weekly Report*, **32** (30)
    July 27, 1974, 1943.

[^209]: The reports first comments on campaign finance proposals
    stressed the essential importance of disclosure. The electorate
    should be made aware of contributions, expenditures, and government
    action that affects contributors. They were also mindful of the
    temptation to over-regulate in the wake of scandal. They were
    concerned not to stifle grass roots politics, and over-burden the
    amateur with participatory disincentives in the way of regulations
    and possible sanctions. Reform measures should also be enacted with
    an awareness of time, in order to avoid a repetition of the April 7
    1972 scenario, where the Nixon campaign indulged in a 'frantic
    effort' to obtain contributions before the new legislation came into
    effect, forcing disclosure. *Congressional Quarterly Weekly Report*,
    July 27 1974, 1945. The report also proposed a prohibition on all
    cash contributions in excess of \$100 and that candidates should
    designate one committee as their campaign committee. Spending caps
    and contribution limits were also proposed for presidential
    candidates. A system of tax credits was recommended on contributions
    made to Federal candidates and funding raised out of direct taxation
    (taxation without representation, as Nixon described it) was
    opposed. Solicitation and receipt of monies from foreign nationals
    though already illegal, technical weaknesses in the law, according
    to Ervin, needed to be remedied. Other proposals advocated a ban on
    senior executive officials\' soliciting or receiving campaign
    contributions. This ban aimed to prevent conflict of interest and
    the possible coercive effect solicitations by the powerful might
    have on potential contributors. Finally, the committee recommended
    that violations of the major provisions of campaign finance law be
    made felony offences. Ervin (1974) 151-169. Most of these proposals
    had been incorporated into the Senate bill passed on April 11 1974,
    S3044, sponsored by Senator Howard W. Cannon (D-NV). *Congressional
    Quarterly Weekly Report*, July 27 1974, 1945.

[^210]: Colloquay (1994) \'Federal Election Commission Panel Discussion:
    Problems & Possibilities\': *The Administrative Law Journal,* **8**
    234.

[^211]: Ervin argued that, as existing enforcement officers were not
    vested with subpoena power, their investigations were inadequate.
    Additionally, no central campaign finance data repository existed,
    and each officer had their own rules for making data available to
    the public. Finally, Ervin highlighted Elmer Staats\' comments
    regarding the lack of independence imbued in the enforcement
    apparatus. Staats said 'confidence in impartiality is weakened in a
    situation where the administrator comes up for appointment every two
    years by the employers he is required to police.' Ervin (1974)
    152-153.

[^212]: Ervin (1974) 153.

[^213]: The Commission would have the power to administer oaths and to
    require by subpoena the attendance and testimony of witnesses and
    the production of documents relating to its duties. Ervin (1974)
    152-156.

[^214]: Mosher F (Ed) (1974) 102-104.

[^215]: The lack of progress in the House in passing comprehensive
    reform was not always the result of obstructionism or a lack of
    political will. Institutional differences between the House and
    Senate in the way the legislative process works makes it more
    difficult to pass House bills in a timely fashion. For example,
    House rules dictate that a bill must only be referred to one
    committee, and the jurisdiction of that committee dictates the
    breadth of its review. If a bill is introduced that covers the
    jurisdiction of more than one committee, two or more bills must be
    drafted. Berry J & Goldman J (1973) 345.

[^216]: Edward Kennedy, referring to the passage of S3044, commented
    that, 'this is one of the finest hours of the Senate in this or any
    other Congress.' www.virginia.edu 19.01.01.

[^217]: This was when \'Elections\' became \'Election,\' losing the
    plural, and according to Brooks Jackson, confusing journalists for
    many years afterwards. Jackson B (1990) 26.

[^218]: Comment (1974) \'House Campaign Finance Bill Reported\':
    *Congressional Quarterly Weekly Report*, **32**, (32) August 10,
    2157.

[^219]: Comment (1974) *Congressional Quarterly Weekly Report,* **32**
    (32) 2158.

[^220]: www.virginia.edu 19.01.01

[^221]: Evidence of the fear Hays could generate was displayed when the
    Democratic Steering and Policy Committee voted to oust him from his
    Chairmanship of the House Administration Committee. Although a
    replacement was voted in, 15-9, when an open vote was held by the
    Democratic Caucus, Hays was backed twice, 176-109, & 161-111.
    Comment (1976) \'Hays Committee: Frightening Base of Power':
    *Congressional Quarterly Weekly Report*, **34**, (22) May 29, 1976,
    1334.

[^222]: Spending on food, beverages, invitations, personal property, and
    travel expenses would have to be disclosed, but it would not count
    against expenditure limits. Comment (1976) \'Congress Clears
    Campaign Financing Reform\': *Congressional Quarterly Weekly
    Report*, **32** (41) 2869.

[^223]: The original bill would have allowed Wayne Hays to have *de
    facto* control over regulations as his committee would have had veto
    power.

[^224]: Frenzel commented 'I think the bill is in a good form to provide
    reasonable independent supervision, and yet keep control of the
    regulations so that no supervisory agent can run roughshod over the
    Congress.' Comment (1974) \'Speedy Conference on Campaign Reform
    Seen\': *Congressional Quarterly Weekly Report*, **32** (33) 2236.

[^225]: Dawson Mathis (D-GA) charged that the bill was being pushed
    through by Common Cause, and warned that the board could turn on
    Congress, as it failed to control it under the new amendment. He
    continued 'we are going to set up a bunch of head-hunters down here
    who are going to spend their full time trying to make a name for
    themselves persecuting and prosecuting members of Congress.' Bill D.
    Burlison (D-MO) said that by accepting the amendment, the House
    would be 'setting the stage for making it impossible for an
    incumbent to get a fair shake before this group.' Comment (1974)
    *Congressional Quarterly Weekly Report*, **32** (33) 2236.

[^226]: Comment (1974) *Congressional Quarterly Weekly Report*, **32**
    (33) 2236.

[^227]: Hays particularly disliked high-profile Senate conferees Edward
    Kennedy (D-MA), Russell Long (D-LA), and John Pastore (D-RI). All
    advocated a strong enforcement commission, higher spending limits,
    and comprehensive Congressional public financing. Comment (1974)
    \'Campaign Finance Reform\': *Congressional Quarterly Weekly
    Report*, **32** (40) 2691.

[^228]: Alexander H (1984) 37. Data that sets out House and Senate
    re-election success rates would support the argument that House
    candidates wished to maintain the *status quo*. For example, Senate
    re-election success rates for 1968 were 71.4%, rising to 77.4% in
    1970, falling to 74.1% by 1972. The re-election success rate for
    House candidates in 1968 was 96.8%, 94.5% in 1970, and 93.6% in
    1972. Sunstein C (1994) 1401-1402.

[^229]: Hays commented, 'If the government guaranteed every challenger
    ninety thousand dollars, five hundred candidates would run in every
    district.' 'It would be a travesty for every rip-off artist in the
    country.' www.virginia.edu 19.01.01.

[^230]: Comment (1974) *Congressional Quarterly Weekly Report*, **32**
    (33) 2233.

[^231]: Comment (1974) *Congressional Quarterly Weekly Report*, **32**
    (40) 2691. Hays agreed that the Commission should have the authority
    to issue subpoenas, and seek injunctions. www.virginia.edu 19.01.01.

[^232]: Ford disagreed with public funding of elections but, responding
    to Watergate, he declared 'that the times demand this legislation.'
    'The unpleasant truth is that big-money influence has come to play
    an unseemly role in our electoral process, and the 1974 law will
    help to right that wrong.' www.virginia.edu 19.01.01.

[^233]: For a summary of the main provisions of the FECA amendments of
    1974, see appendix d.

[^234]: The Commission had proposed that disclosure reports mandated
    under the Act should be filed directly with the Commission, rather
    than indirectly through the House Clerk and Secretary of the Senate.
    Hays and his colleagues were irked by this proposal and immediately
    voted it down. Jackson B (1990) 27-28.

[^235]: Comment (1974) *Congressional Quarterly Weekly Report*, **32**
    (41) 2866 & 2868.

[^236]: Comment (1997) \'Seeking a Fix for Election Law: Panelist says
    First Amendment protections may block reform efforts\': *American
    Bar Association Journal*, 92.

[^237]: The first amendment to the constitution reads: Congress shall
    make no law respecting an establishment of religion, or prohibiting
    the free exercise thereof; or abridging the freedom of speech, or of
    the press; or the right of the people peaceably to assemble, and
    petition the government for a redress of grievances.

[^238]: Contributions were likened to acts of symbolic political
    support. Placing limits on the level of contributions permitted did
    not, in the Court\'s opinion, negate the symbolic act itself.

[^239]: Burke D (1995) 365-366. Although two of the Commissioners might
    seem to have been appointed constitutionally by the President, the
    House of Representatives had participated in their confirmation,
    something that was unconstitutional.

[^240]: President Ford wished to facilitate the re-establishment of the
    FEC and leave any other legislative changes until after the 1976
    elections. Comment (1974) \'Partisan Wrangle Delays Campaign Bill\':
    *Congressional Quarterly Weekly Report*, **34** (12) 603.

[^241]: Hays did not seriously consider allocating Commission functions
    elsewhere, as Congress was under pressure to reconstitute the
    agency. Jackson B (1990) 28. Moderate Republicans and liberal
    Democrats had warned against the passage of any interim legislation
    designed to facilitate Commission functions. Bill Frenzel (R-MN)
    said 'Once that happens, the game is over, there'll be no election
    commission.' Comment (1976) *Congressional Quarterly Weekly Report*,
    **34** (6) 270.

[^242]: www.brook.edu 8.3.01 document 2.10.

[^243]: Comment (1976) \'Senate Accepts Compromise Campaign Bill\':
    *Congressional Quarterly Weekly Report*, **34** (13) 675.

[^244]: Comment (1976) \'Congress Clears New Campaign Finance Law\':
    *Congressional Quarterly Weekly Report*, **34** (19) 1105.

[^245]: Comment (1976) *Congressional Quarterly Weekly Report*, **34**
    (13) 675.

[^246]: Comment (1976) *Congressional Quarterly Weekly Report*, **34**
    (6) 269.

[^247]: Jackson B (1990) 28. Many in Congress had modified their
    post-Watergate enthusiasm for the agency. Hays commented 'the
    Commission went so far astray from Congressional intent in their
    interpretation of the law, that it appears wisest for Congress to
    re-evaluate this prior approach, and perhaps look toward a different
    way of monitoring election campaigns.' Comment (1976) \'Campaign
    Finance: Congress Weighing New Law\': *Congressional Quarterly
    Weekly Report*, **34** (6) 270.

[^248]: In the votes to ratify the final conference report on the 1976
    amendments, 218 House Democrats were supported by 73 Republicans,
    and 49 Senate Democrats were supported by 13 Republicans. Comment
    (1976) *Congressional Quarterly Weekly Report*, **34** (19) 1104.

[^249]: On October 22 1993, a decision was handed down by U.S. Court of
    Appeals for the District of Columbia in *FEC v Nation Rifle
    Association*, *Political Victory Fund,* that Congress exceeded its
    authority placing *ex officio* representatives on the Commission.
    Comment (1993) \'Ruling May Unleash Torrent of Challenges to the
    FEC\': *Congressional Quarterly Weekly Report,* 2944. The case was
    appealed by the FEC, but was dismissed for lack of standing. FEC
    Twenty Year Report, Chapter 6, 60. This pleased many critics of the
    FEC, who often referred to *ex officio* members as 'Congressional
    spies.'

[^250]: Comment (1976) *Congressional Quarterly Weekly Report,* **34**
    (20) 1223.

[^251]: Cowett A (1989) \'Walking on Eggshells: The Federal Election
    Commission and Political Regulation\': 53.

[^252]: Comment (1976) \'Ford Agrees To Sign Campaign Finance Law\':
    *Congressional Quarterly Weekly Report,* **34** (20) 1223.

[^253]: Comment (1976) *Congressional Quarterly Weekly Report,* **34**
    (19) 1105.

[^254]: When the Commission was barely one month old, Hays shouted at
    Curtis, telling him that the agency would not get a multiyear
    budget. Hays said, 'you're not going to set the ground rules, as
    chairman, I'll tell you. You're coming back every year for an
    authorisation.' Jackson B (1990) 27.

[^255]: After the FECA 1976 was passed, Curtis resigned from the
    Commission. He wrote to President Ford, complaining that changes to
    the law undermined the independence of the Commission, and therefore
    no longer offered an opportunity of public service. Comment (1976)
    *Congressional Quarterly Weekly Report,* **34** (19) 1104.

[^256]: The term 'reason to believe' is just one technical standard used
    by the FEC to indicate the stage an enforcement case has reached.
    Cain B & Lochner T (1999) 1906.

[^257]: Comment (1976) *Congressional Quarterly Weekly Report,* **34**
    (20) 1224.

[^258]: Section 314 (a) (5) FECA 1976.

[^259]: David P (1976) 279.

[^260]: Curtis T (1979) 831.

[^261]: The term soft money denotes 'funds raised and/or spent outside
    the limitations and prohibitions of the FECA. These non-federal
    funds often include corporate and, or, labor treasury funds, and
    individual contributions in excess of the federal limits, which
    cannot be legally used in connection with federal elections, but
    which can be used for other purposes.' FEC Twenty-Year Report:
    www.fec.gov/pages/ch3 24.8.00. Candidates and committees must keep
    their federal and non-federal funds separate. Although soft money
    expenditures are not supposed to benefit federal candidates, they
    do, by campaigning for federal and non-federal candidates at the
    same time, and by distorting the commonly understood meaning of
    'party-building activities.'

[^262]: The FEC denied that Congressional pressure had been responsible
    for the suspension of random audit. They claimed that the suspension
    was the result of resource constraints. Light L (1980) 1024.

[^263]: The FEC had attracted criticism for carrying out allegedly
    unwarranted audits, after it often found committees in substantial
    compliance. Some in Congress claimed that the random audit of their
    campaigns would confuse the public, leading them to think violations
    had already been found. Members also claimed that it was
    unproductive, wasted money, and encouraged opponents to exploit the
    process for political gain. Alexander H (1984) 51. Consequently, the
    House Administration Committee voted by 19-2 to deny any more
    funding for random audit. Republican Commissioners voted to continue
    random audit, but all three Democratic Party appointees voted
    against it. Jackson B (1990) 30.

[^264]: Orrin Bleakley (R-Pen), elected to the House of Representatives,
    resigned his seat after admitting exceeding the \$5,000 spending
    limit.

[^265]: Gross K (1990) \'Enhancing Enforcement,\' in Nugent M & Johannes
    J (Ed) *Money, Elections, and Democracy: Reforming Congressional
    Campaign Finance*: San Francisco, West View Press, 225.

[^266]: 2 U.S.C. 437c(b)(1) (1994).

[^267]: Bowman J & Thomas S (2000) \'Symposium: \'Regulation of
    Politics, Federal Election Commission, Obstacles to Effective
    Enforcement of the Federal Election Campaign Act\': *Administrative
    Law Review* **52** (2) 576.

[^268]: The FEC refer to agency functions as programmes. These
    programmes are divided into core programmes, and management
    programmes. Core programmes include: disclosure, compliance, public
    financing, and election administration. Management programmes
    include; information technology, electronic filing projects,
    commission policy, and administration. FEC Budget Request 2001
    www.fec.gov/ 11.7.01

[^269]: This view is questionable, as a defeated candidate may claim
    injury or loss if his/her opponent enhanced their campaign by
    breaking campaign finance law. Additionally, there exists the more
    abstract injury or loss to voters as a collective community. Perhaps
    Cain & Lochner might have substituted the word quantifiable for
    identifiable.

[^270]: Cain B & Lochner T (2000) \'The Enforcement Blues: Formal and
    Informal Sanctions for Campaign Finance Violation\': *Administrative
    Law Review* **52** (2) 632.

[^271]: Although the GPRA was not implemented with any vigour until
    1997, it was designed to address three governmental failures.
    Firstly, that there was an unacceptable level of waste and
    inefficiency in Federal programmes. Secondly, that attempts to
    improve efficiency were handicapped by the lack of clearly defined
    goals and insufficient information. Thirdly, that Congressional
    policy-making, oversight and budget decisions are hampered by
    insufficient attention to agency results.
    [www.whitehouse.gov/omb](http://www.whitehouse.gov/omb) 4.9.01.

[^272]: [www.fec.gov](http://www.fec.gov/) 5.9.01

[^273]: The FEC is in a stronger position *vis a vis* the executive than
    many other agencies as it has concurrent submission authority. The
    budget and performance objectives are transmitted to the OMB first.
    The FEC receives a pass-back figure from OMB, which is the amount
    they are prepared to support. Should the FEC feel that this is
    significantly inadequate, they can appeal directly to Congress by
    presenting supporting arguments for their own figure. 2 U.S.C. 437d
    (9)(d)1.

[^274]: Agencies are proscribed from retrospectively \'adding new
    performance goals, omitting existing ones, or rewriting, and
    tinkering with others.\' U.S. House of Representative\'s,
    Subcommittee on Governmental Efficiency, Financial Management and
    Intergovernmental Relations, Statement by Sean O\' Keefe, Deputy
    Director, Office of Management & Budget, June 19 2001.
    [www.whitehouse.gov/omb](http://www.whitehouse.gov/omb) 4.9.01.

[^275]: Interview with the author, Washington D.C. 22.10.01.

[^276]: Interview with the author, Washington D.C. 22.10.01.

[^277]: The budget justification contains historical data to aid
    comparative examination and sets out the number of full-time
    employees allocated to particular divisions and offices.

[^278]: FEC Budget Request 2001 Programme III: Public Financing
    [www.fec.gov/](http://www.fec.gov/) 11.7.01

[^279]: Couples have an opportunity to contribute \$6, if joint filers.

[^280]: FEC Annual Report (1999) Presidential Public Funding (Ch5) 35.

[^281]: FEC Budget Request (2001) www.fec.gov. 11.7.01.

[^282]: FEC Budget Request (2001) www.fec.gov 11.7.01.

[^283]: The FEC, journalists, and other researchers have often used the
    identification of trends or conspicuous contribution patterns to
    uncover any number of nefarious strategies designed to evade FECA
    limits.

[^284]: PWC (1999) Technology and Performance Audit and Management
    Review of the Federal Election Commission, **1** 4.4.1.

[^285]: Budget Request (2001) www.fec.gov 11.7.01.

[^286]: Budget Request (2001) www.fec.gov 11.7.01.

[^287]: FEC Twenty-Year Report (1995): Presidential Public Funding,
    Audits. www.fec.gov/pages/ch2 24.8.00.

[^288]: www.opensecrets.org/pubs/law 3.3.01 A three-year statute of
    limitations applies to obtaining Treasury repayments, but violations
    of the FECA by candidates and committees can be subject to
    enforcement action for up to five years. Telephone enquiry to the
    FEC Press Office, 9.7.01.

[^289]: A Title 26 General Election audit takes on average 5,290
    full-time employee hours (FTE), and costs \$142,000. A Title 26 Post
    Primary audit takes 5,085 FTE hours, and costs \$127,000. In 1996,
    the FEC carried out three general election audits, and eleven
    primary audits. PWC (1999) (vol 1) 4.4.2.

[^290]: PricewaterhouseCoopers LLP (1999) 4.4.2.

[^291]: FEC Annual Report (1999) 38.

[^292]: Footnote 9 in Chapter 1 describes the 1996 abuses and subsequent
    Congressional investigation in more detail.

[^293]: PWC (1999) Executive Summary (ES-3).

[^294]: FEC Twenty-Year Report (1995): Best Efforts, www.fec.gov
    24.8.00.

[^295]: FEC Budget Request (2001) www.fec.gov 11.7.01.

[^296]: FEC Budget Request (2001) www.fec.gov 11.7.01.

[^297]: PWC (1999) (vol 1) 4.2.4.

[^298]: As of November 1998, 250 committees filed electronically,
    although this represented a small percentage of all filers (3%). PWC
    (1999) **1** 4.2.6.

[^299]: FEC Annual Report (2000) 1.

[^300]: FEC Annual Report (2000) 3.

[^301]: Bob Dahl of the Fair Government Foundation, a non profit
    organisation that promotes First Amendment rights\' commented: \'the
    Reports Analysis Division (RAD) is given insufficient credit for
    both its appropriate monitoring function for enforcement purposes
    and perhaps more importantly, promoting compliance by encouraging
    correction of reporting errors or inadvertent violations of the law
    by committees.\' U.S. House of Representatives, Committee on
    Government Reform, Subcommittee on Government Management,
    Information, and Technology, March 5 1998, 6.

[^302]: PWC (1999) (vol 1) 4.3.1.1.

[^303]: FEC Annual Report (2000) 82.

[^304]: PWC (1999) **2** appendix b-1.

[^305]: PWC (1999) **1** 4.2.8.

[^306]: PWC (1999) Executive Summary Exhibit ES1-ES4. This might be seen
    as a grave weakness in the utility of campaign finance data. The
    collection, analysis and disclosure of data on disbursements might
    prove just as informative to the electorate as data on
    contributions. Unlike receiving an unsolicited donation, choice is
    tangibly exercised when making expenditures. Therefore, spending may
    be indicative, or at least suggestive, of motivational behaviour and
    something that might well affect voting behaviour. According to Bob
    Biersack, deputy Press Officer at the FEC, attempts are being made
    to provide a database with information on disbursements but this is
    likely to take quite some time. Additionally, as the members of the
    Senate are not required to file electronically, data will remain
    incomplete in the future. E-mail response from Bob Biersack,
    13.2.02.

[^307]: PWC (1999) **1** 3.2.1.

[^308]: The PWC report found that \'FEC organisational units operate in
    a compartmentalized and autonomous manner that leads to diminished
    communication, collaboration, and innovation.\' PWC (1999) Executive
    Summary, 3.

[^309]: PWC (1999) Executive Summary, 5.

[^310]: FEC Budget Request (2001) www.fec.gov 11.7.01.

[^311]: FEC Budget Request 2001 www.fec.gov 11.7.01.

[^312]: PWC (1999) **1** 3.2.1.

[^313]: PWC (1999) **2** Q38.

[^314]: FEC Annual Report (2000) 6.

[^315]: Digital images of reports can be accessed in-house, via the
    Public Records Office. FEC Annual Report (2000) 6.

[^316]: Atlas S (1992) \'Frontline Heroes\': *Government Executive*
    (March) 33.

[^317]: PWC (1999) **1** 4.2.1.1.

[^318]: FEC Annual Report (2000) Appendix 5, 82.

[^319]: Kent Cooper left to join another former FEC staffer, Tony
    Raymond, who set up the award-winning campaign finance Internet
    web-site, www.tray.com.

[^320]: Atlas S (1992) 33.

[^321]: FEC Twenty-Year Report (1995): Disclosure www.fec.gov 24.8.01.
    It issued 84 press releases during 2000. FEC Annual Report (2000)
    82.

[^322]: The number of telephone calls received by the Press Office has
    risen incrementally. In 1977, it received just over 2000 calls,
    peaking in 1992, with just over 22,000. Similarly, the Public
    Records Office has also increased the numbers of visitors it has
    served. In 1978, the PRO served approximately 12,000 people. By
    1994, this had risen to approximately 47,000. Federal Election
    Commission, Twenty Year Report, April 1995, 8-9.

[^323]: It processed 33 FOIA requests during 2000. FEC Annual Report
    (2000) 82.

[^324]: FEC Budget Request (2001) [www.fec.gov](http://www.fec.gov/)
    11.7.01.

[^325]: FEC Budget Request (2001) [www.fec.gov](http://www.fec.gov/)
    11.7.01.

[^326]: FEC Twenty Year Report (1995): Outreach www.fec.gov 24.8.00. FEC
    Annual Report (2000) 7.

[^327]: FEC Annual Report (2000) 82.

[^328]: The Office of the General Council employed 105 full-time
    employees (FTE), during 1999, 104 during 2000, with 108 projected
    for 2001. Of this complement, approximately 50% are dedicated to the
    enforcement programme. FEC Budget Request (2001) Summary www.fec.gov
    11.7.01. An examination of how staff resources are allocated between
    functions revealed the following enforcement positions: 28
    attorneys, 10 paralegal, 2 investigators, 5 secretaries, and 4
    administrative assistants. Lawrence Noble held the post of FEC
    General Counsel from 1987 until his resignation in January 2001.
    Larry Noble is now Executive Director, and General Counsel at the
    Center for Responsive Politics in Washington D.C. FEC Annual Report
    (2000) 31. The post remained unfilled for nearly a year, until
    Lawrence H. Norton was appointed in August 2001. FEC Press Release
    August 20, 2001.

[^329]: PWC (1999) **1** 4.3.1.2.

[^330]: The complainant must provide their full name and address and the
    complaint must be signed, sworn, and notarised. They must set out
    how a particular action has, or will, violate the FECA. Names of the
    respondent/s should be provided, the facts clearly set out and
    differentiation should be made between fact and hearsay. PWC (1999)
    **1** 4.3.3.1.

[^331]: PWC (1999) ES-1.

[^332]: Light L (1980) \'Reform-spawned Agency Stirs Discontent\':
    *Congressional Quarterly Weekly Report*, April 19, 1024.

[^333]: Cain B and Lochner (1999) \'Equity and Efficacy in the
    Enforcement of Campaign Finance Laws\': *Texas Law Review*, **77**
    1891. Mary Meehan, a Washington-based journalist notes that
    candidates and ideological groups file numerous complaints against
    each other. Challengers file against incumbents, National Right to
    Work Committee against Labor Unions, National Abortion Rights Action
    League against anti-abortion groups, etc. Describing the political
    advantages of using the R.I.P. strategy, she said that \'it gives
    the opportunity to put out a press release, soaks up opposition
    resources in fighting the complaint, may discourage certain methods
    of fund-raising and in some cases, simply be used as revenge for
    complaints filed by the other side. Meehan M (1984) Policy Analysis
    No 42: *The Federal Election Commission, A Case for Abolition*
    [www.cato.org/pubs/pas/pao42](http://www.cato.org/pubs/pas/pao42).

[^334]: *Sua sponte* the Latin for \'of your own volition.\'

[^335]: The Commission has often been criticised for the retributive way
    it treats those who make *sua sponte* admissions, as it tends to
    discourage voluntary compliance. Bob Dahl of the Fair Government
    Foundation, a non-profit organisation promoting First Amendment
    rights, found that *sua sponte* cases resulted in a civil penalty
    twice as often as other cases. These voluntary admissions of guilt
    also attracted a 50% higher level of fine than other cases. Only 14%
    of *sua sponte* admission*s* resulted in no action being taken. U.S.
    House of Representatives, Subcommittee on Government Management,
    Information and Technology, March 5 1998, 14. When asked about the
    severity of fines for those making voluntary admissions, Alex Vogel,
    General Counsel for the National Republican Senatorial Committee
    commented: \'Which is why we say don\'t ever talk. The toughest
    thing for me is when someone comes to me and says, \'look, we've
    discovered that we\'ve made a mistake. We thought this was OK, but
    we\'ve figured out that it\'s not.\' A good example, not here but at
    the Republican National Committee, a donor would turn round and say
    \'I\'m over my \$25,000 annual limit. I\'m really sorry. I\'ll ask
    for all the money back, I\'ll never do it again, it was an
    accident.\' They\'d get fined. Absolutely get fined. Or they could
    do absolutely nothing and never do it again and the chances of them
    getting fined are infinitesimally small. So what are you going to
    do? They are not going to go to the FEC.\' Interview with the
    author, Washington D.C. 26.10.01.

[^336]: Gross K (1990) 225-227.

[^337]: Lochner T and Cain B (2000) 636-637.

[^338]: The number of cases pending at the beginning of 2000 was 26, at
    the end of 2000 it had reached 36. During this time, it had won 7
    cases and lost 3. FEC Annual Report (2000) 83.

[^339]: A case concluding in civil suit might have passed through twelve
    substantive stages, eight of which could require Commissioner
    approval. PWC (1999) **1** Exhibit 4-25.

[^340]: The FEC and the Department of Justice entered into a Memorandum
    of Understanding in 1978. This governs the circumstances in which a
    criminal referral is warranted. Cain B & Lochner T (1999) 1899.

[^341]: By law, the Commission is required to \'correct or prevent
    violations by informal methods of conference, conciliation and
    persuasion and to enter into a conciliation agreement with
    respondents. FECA 1971 as amended, Title 2, 437g.

[^342]: Fred Wertheimer, President of Democracy 21 and former President
    of Common Cause said \'we were OK for about ten years. The reason
    was the mindset of people post-Watergate was that there might be
    some danger here....look, people went to jail for breaking campaign
    finance laws.\' Interview with the author, Washington D.C. 25.10.01.

[^343]: Germond J & Witcover J (1981) \'Beleaguered FEC May Survive Hill
    Onslaught,\' *Washington Star* (June 23) 3. Thomas S & Bowman J
    (2000) 578.

[^344]: *Congressional Record* (1989) (September 21) **21** 329. Thomas
    S & Bowman J (2000) 577.

[^345]: Stone P (1993) \'Teaching a Lapdog to Bite\': *National
    Journal,* **25** (49) 2914.

[^346]: Jackson B (1987) \'Election Commission Set Up as a Watchdog, Has
    Become a Pussycat\': *The Wall Street Journal*, **ccx 78** 1.

[^347]: Comment: (1981) \'Toothless Watchdog\': *Commercial Appeal*
    (June 2nd). Thomas S & Bowman J (2000) 577.

[^348]: Barnes J (1994) \'Wobbly Watchdog,\': *National Journal,* **26**
    (14) 775.

[^349]: Barnes J (1997) \'Shh! Don't Wake the Watchdog\': *National
    Journal* **29** (12) 583.

[^350]: Comment: (1997) \'Daring Dolittle\': *Wall Street Journal*
    (January 17) 12. Thomas S & Bowman J (2000) 578.

[^351]: Cummings J (1997) \'Louisiana Republican Gives Election Panel a
    'No 'Vote': *Wall Street Journal* (December 15) 24. Thomas S &
    Bowman J (2000) 578.

[^352]: This term was used in a 1995 report authorised by the House
    Administration Committee and referred to the Commission\'s ability
    to adjust its rulings and workload in order to justify its budget
    requests. Comment (1995) *Roll Call*, Monday, July 10, 4.

[^353]: Shannon E (1998) *Time Magazine*, **152** (11) 20.

[^354]: Quoted in -Cary W (1967) *Politics and the Regulatory Agencies*:
    McGraw-Hill Book Company, 2.

[^355]: FEC Budget Request (2000) PWC (1999) **1** 4.3.

[^356]: FEC Budget Request (2000) & PWC (1999) 4.3.

[^357]: FEC Budget Request (2001) Enforcement www.fec.gov 11.7.01. \* As
    Commission decision-making is central to the resolution of legal
    issues\' it is more appropriate to discuss the performance of this
    goal in the Chapter on Commissioners and not the bureaucracy.
    Similarly, it would be more appropriate to discuss the number of
    civil actions initiated by the FEC in the chapter on Commissioners.

[^358]: Kevin Bacon, Partner PricewaterhouseCoopers LLP testified: \'FEC
    organisational units operate in a compartmentalised and autonomous
    manner that leads to diminished communication, collaboration and
    innovation.\' U.S. House of Representatives, Committee on House
    Administration, May 18 1999 6.

[^359]: Malbin M & Gais T (1998) *The Day After Reform, Sobering
    Campaign Finance Lessons from the American States:* Albany, New
    York, The Rockefeller Institute Press, 36.

[^360]: The authors elaborate on this point by suggesting that whom one
    takes money from (e.g. the tobacco lobby) or gives it to (e.g. right
    wing evangelical groups) is more relevant to voters than whether
    donations comply with strict FECA standards. Cain B and Lochner T
    (1999) 1919.

[^361]: Interview with the author, Washington D.C. 24.10.01.

[^362]: Interview with the author, Washington D.C. 24.10.01.

[^363]: Interview with the author, Washington D.C. 26.10.01.

[^364]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, 103rd Congress, First Session, 686-687.

[^365]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, 103rd Congress, First Session, 690-691.

[^366]: U.S. House of Representatives, House Administration Committee,
    Subcommittee on Elections, Fiscal Year 1994, 148.

[^367]: FEC Memorandum, April 5 1994, Final Responses to Questions
    Submitted by Chairman Hoyer in Conjunction with FY 1995
    Appropriations Hearings, section relating to performance
    measurement.

[^368]: U.S. House of Representatives, House Administration Committee,
    Subcommittee on Elections, Fiscal Year 1995, 2.

[^369]: U.S. House of Representatives, House Administration Committee,
    Subcommittee on Elections, Fiscal Year 1995, 83-84.

[^370]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service, and General Government
    Appropriations, Fiscal Year 1998, 58.

[^371]: Interview with the author, Washington D.C. 22.10.01.

[^372]: Interview with the author, Washington D.C. 18.10.01.

[^373]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service, and General Government
    Appropriations, Fiscal Year 1996, 324-325.

[^374]: Interview with the author, Washington D.C. 17.10.01.

[^375]: Beinart P (1996) \'TRB from Washington, Doling it Out\': *The
    New Republic*, April 8, 6.

[^376]: Shenk J (1997) \'Why the Federal Election Commission is a
    Lap-Dog for the Political Class\': *U.S. News and World Report*,
    January 20, 31.

[^377]: Jackson B (1990) *Broken Promise, Why the Federal Election
    Commission Failed*: New York, Priority Press, 3-5.

[^378]: PricewaterhouseCoopers LLP (1999), External Stakeholder
    Perspectives, 3.2.

[^379]: PWC (1999) Internal referrals, 4.3.3.5.

[^380]: Interview with the author, Washington D.C. 24.10.01.

[^381]: Interview with the author, Washington D.C. 16.10.01. Bob Dahl of
    the Fair Government Foundation testified before Congress that
    \'months or even years after filing your response to a complaint,
    you get a letter from the FEC telling you of your fate.\' U.S. House
    of Representatives, Committee on Government Reform, Subcommittee on
    Government Management, Information and Technology, March 5, 1998,
    18.

[^382]: Interview with the author, Washington D.C. 17.10.01.

[^383]: FEC Budget Request (2001) Enforcement
    [www.fec.gov](http://www.fec.gov/) 11.7.01.

[^384]: Ian Stirton, FEC Press Office, 17.04. 02.

[^385]: Interview with the author, Washington D.C. 17.10.01.

[^386]: Colloquay (1994) \'Federal Election Commission, Problems and
    Possibilities\': *Administrative Law Review*, **8** 249.

[^387]: PWC (1999) E-S-8.

[^388]: Thomas S & Bowman J (2000) 588.

[^389]: William Thomas, Chairman of the Committee on House
    Administration stated that the fines programme would \'free-up more
    resources to allow the OGC to deal with more important disclosure
    and enforcement efforts.\' Comments made September 15 1999, *Federal
    Register*, 65 31788, May 19 2000.

[^390]: Shawn W. Werth is the independent reviewing officer at the FEC.

[^391]: FY (2003) FEC Budget Request, Appendix 1, Administrative Fines
    Programme, February 25, 2002, submitted to Congress and the OMB.
    [www.fec.gov/pages/budget/fy2003](http://www.fec.gov/pages/budget/fy2003)
    15.4.02.

[^392]: [www.fec.gov/af](http://www.fec.gov/af) 20.7.00.

[^393]: The FEC is not responsible for the active recovery of
    uncollected fines. These take on the status of debts to the United
    States and are referred to the U.S. Department of the Treasury for
    collection. Interview with Shawn Werth, Washington D.C. 15.10.01. By
    January 31 2002, 67 cases had been referred to the U.S. Treasury for
    collection. The Treasury had been able to collect the fines imposed
    in 7 cases.
    [www.fec.gov/pages/budget/fy2003](http://www.fec.gov/pages/budget/fy2003)
    15.4.02.

[^394]: Interview with the author, Washington D.C. 17.10.01.

[^395]: Interview with the author, Washington D.C 18.10.01.

[^396]: Interview with the author, Washington D.C. 18.10.01.

[^397]: Interview with the author, Washington D.C. 16.10.01.

[^398]: However, this improvement may not prove to be an enduring one
    because the FEC has proposed to reduce the level of fines imposed by
    the administrative fines programme. A Notice of Proposed Rule Making
    (NPRM) was issued on April 25 2002 which sought to reduce the
    penalties imposed on those committees whose receipts totalled less
    than \$50,000. The concern has been that the rubric for the
    calculation of an administrative fine has led to penalties being
    levied in excess of that under more traditional methods of a
    conciliation agreement. Whilst public interest advocates have
    opposed the NPRM as enforcement deterrence has traditionally been
    weak, and the change will reduce the minimal deterrence now in
    place, what may be of more concern is the possibility that all non
    Federal receipts might be exempted from the programme under the
    NPRM. [www.fecwatch.org](http://www.fecwatch.org/) 25.9.02 *Federal
    Register* **67** (80) 20461.

[^399]: FEC Annual Report (2000) 90-91.

[^400]: Interview with the author, Washington D.C. 26.10.01.

[^401]: Interview with the author, Washington D.C 23.10.01.

[^402]: Interview with the author, Washington D.C. 17.10.01.

[^403]: Interview with the author, Washington D.C. 26.10.01.

[^404]: Interview with the author, Washington D.C. 22.10.01.

[^405]: Interview with the author, Washington D.C. 17.10.01. The PWC
    audit provided a breakdown of generic violations for 1998 which
    supports Larry Noble\'s assertion that the OGC did spend significant
    resources on late and non-filers. The compliance-related inventory
    found that 35% involved late and non-filers, 20% excessive
    contributions, 5% contributions made in the name of another, 10%
    involved independent expenditures that appeared co-ordinated and 30%
    contributions from labor unions and corporations. PWC (1999) 3.3.4.

[^406]: Interview with FEC staffers Shawn Werth, Ronald Harris and Kelly
    Huff, Washington D.C. 15.10.01.

[^407]: [www.mediate.com](http://www.mediate.com/) 15.2.02.

[^408]: [www.mediate.com](http://www.mediate.com/) 15.2.02.

[^409]: *Federal Register* (2000) 59200 & 59208-14, **65** October 4, 1.

[^410]: FEC Memorandum 28.9.01 PricewaterhouseCoopers Status Report.

[^411]: Allan Silberman, ADR Director stated that of the 61 cases
    reviewed during 2001, 17 were turned down as unsuitable for the
    programme.

[^412]: Alternative Dispute Resolution, Federal Election Commission,
    September 2000.

[^413]: By February 2002, 67 cases had passed through ADR. 21 were
    deemed unsuitable for the programme and were returned to the OGC for
    enforcement. 37 cases were resolved, which included 54 separate
    agreements with individual respondents. E-mail response to a
    research request made to Allan Silberman 23.2.02.

[^414]: FEC Memorandum 28.9.01 PricewaterhouseCoopers Status Report.

[^415]: Allan Silberman confirmed that ADR was being used as a way to
    resolve cases that would otherwise be dismissed by the Commission
    under the traditional enforcement arrangements. The ADR Director
    viewed this positively as it gave respondents an opportunity to be
    heard and for their case to be resolved substantively. Interview
    with the author, Washington D.C. 17.10.01. This served the twin
    objectives of due process and the protection of political
    reputations. However, as the quotes indicate, other representatives
    of the regulated community interpreted this as an indication of the
    programme\'s irrelevance.

[^416]: Interview with the author, Washington D.C. 26.10.01.

[^417]: Interview with the author, Washington D.C. 17.10.01.

[^418]: When asked about those who just want to clear a matter up even
    though enforcement was unlikely, Jan Baran commented: \'Well I think
    there will always be folks like that. They will usually be
    individuals from small organisations. They get these letters from
    the Commission and don\'t want the expense of a lawyer, don\'t want
    legal advice. I just turn myself into ADR and sort this out. I mean,
    if they went to a lawyer for a thirty-minute conversation, they\'d
    say, \"look, if you don\'t volunteer for ADR the chances are you\'ll
    never hear from these people again.\" Interview with the author,
    Washington D.C. 17.10.01.

[^419]: Interview with the author, Washington D.C. 15.10.01.

[^420]: Interview with the author, Washington D.C. 24.10.01.

[^421]: Commissioner Mason commented that OGC had complained about the
    removal of late and non-filer violations from their enforcement
    profile. He explained how late and non-filer cases could be worked
    by those otherwise unoccupied because they were waiting for
    responses from the more important complex cases. Additionally, late
    and non-filer work had been employed as a useful training aid for
    new members of staff. Commissioner Mason recalled why the OGC had
    objected to having the majority of their *malum prohibitum* work
    removed: \'They made some arguments about having a balance of work
    in terms of training new people and filling in the gaps. When
    somebody is already working on a case but waiting for deposition
    transfers to come back and they really don\'t have much to do and
    they need a small case to fit into.\' Interview with the author,
    Washington D.C. 22.10.01.

[^422]: The Administrative Fines programme has been given a new
    \'sunset\' authorisation of December 31 2003.

[^423]: Ortiz D (1994) \'Symposium on the Federal Election Commission\':
    *Journal of Law and Politics*, **10** 370.

[^424]: Interview with Jan Baran, Washington D.C. 17.10.01.

[^425]: Ortiz D (1994) 370.

[^426]: Referring to a description of EPS by the FEC General Counsel,
    PWC (1999) 4.3.3.3.

[^427]: Ginsberg and Shefter explain the revelation investigation and
    prosecution (R.I.P.) strategy as follows: \'unable to gain control
    of their opponents\' institutional bastion through the normal
    channels of electoral competition, Democrats and Republicans use
    allegations of impropriety to discredit and weaken the other.\' Cain
    B and Lochner T (1999) 1891.

[^428]: Comment (1980) *Congressional Quarterly Weekly Report*, April
    19, 1025.

[^429]: Comment (1980) *Congressional Quarterly Weekly Report*, April
    19, 1025.

[^430]: Interview with Tina Vanbrakle, FEC Director of Congressional
    Affairs, Washington D.C. 18.10.01.

[^431]: Thomas and Bowman noted how one newspaper quoted former Chairman
    of the House Appropriations Committee, Bob Livingston (R-LA), as
    saying that he was convinced that 9 out of 10 cases pursued by the
    FEC were against Republicans. This was rejected by the authors as
    wrong. Thomas S and Bowman J (2000) 606.

[^432]: Ortiz D (1994) 387.

[^433]: Colloquay (1994) 239.

[^434]: Thomas S and Bowman J (2000) \'Symposium Regulation of Politics,
    Federal Election Commission, Obstacles to Effective Enforcement of
    the Federal Election Campaign Act\': *Administrative Law Review*,
    **52** (2) 590.

[^435]: Thomas S and Bowman J (2000) 590, referring to the FECA 2 U.S.C
    437c(a)(1).

[^436]: The Federal Election Commission, *The First Ten Years*
    (1975-1985) 11.

[^437]: In 1998 Eliza Newlin Carney wrote in the *National Journal* that
    she found 88% of cases involving Democrats resulted in a fine
    compared to 55% for Republicans. Thomas S and Bowman J (2000) 606. A
    study carried out by the Fair Government Foundation found that
    between 1994-1997 of the 685 cases in their sample frame, 36% were
    Democrats and 32% Republican.
    [www.house.gov/cha/business](http://www.house.gov/cha/business)
    15.9.00.

[^438]: PWC (1999) Executive Summary 2.

[^439]: PWC (1999) Executive Summary 8.

[^440]: PWC (1999) 3.1.

[^441]: U.S. House of Representatives, Committee on House
    Administration, Testimony of Mary Meehan, Treasurer of the Committee
    for a Constitutional Presidency, 1977, 392.

[^442]: Jackson B (1990) 8.

[^443]: Jackson B (1990) 8-9.

[^444]: Interview with Larry Noble, Washington D.C. 17.10.01.

[^445]: U.S. House of Representatives, Committee on House
    Administration, 1977, 392.

[^446]: U.S. House of Representatives, Committee on House
    Administration, 1977, 393.

[^447]: Interview with the author, Washington D.C. 17.10.01. Brooks
    Jackson described how the agency earned an early reputation as a
    \'fusspot\' by bringing lawsuits against fringe candidates for
    failing to file disclosure reports despite their poor showing at the
    polls. Jackson B (1990) 29-30.

[^448]: The Commission\'s field investigators not only attracted
    criticism from the regulated community as set out above, they were
    also disliked by Congress. These investigators included former New
    York and Washington police officers, a former army criminal
    investigator and a former member of the CIA, were gradually replaced
    by \'less troublesome, desk-bound lawyers.\' Jackson B (1990) 7-9.

[^449]: Interview with the author, Washington D.C. 17.10.01.

[^450]: The \'express advocacy\' standard was established in *Buckley v
    Valeo* (1976) and reaffirmed in *FEC v Massachusetts Citizens for
    Life, Inc* (1986). However, this standard has largely made a
    nonsense of the law. For example, in an interview with Commissioner
    Scott Thomas, he said \'if I was a candidate standing for election
    and someone said Scott Thomas was a \'wife beater\' think about that
    in November. That would still not reach an \'express advocacy\'
    standard.\' Interview with the author, Washington D.C. 18.10.01. A
    more common sense or expansive definition of \'express advocacy\'
    was established in *FEC v Furgatch* (1987). This was based on (1) an
    unmistakable and unambiguous message, (2) a clear plea for action
    and (3) it must be clear what action is being advocated. However,
    this was successfully challenged in *Maine Right to Life Committee,
    Inc. v FEC* (1996). Campaign Finance Reform Issues Brought to the
    Forefront by the Special Investigation, Committee on Governmental
    Affairs, U.S. Senate 1997 31-32.

[^451]: Comment (2002) \'\$135 of TRIM Brochures Brings FEC Lawsuit,
    Should Pamphleteers Be Licensed?\'
    [www.senate.gov](http://www.senate.gov/) 26.2.02.

[^452]: Muller N (1979) \'Reflections on the Election Commission, An
    Interview with Neil O. Staebler\': *Regulation, AEI Journal on
    Government and Society*, March/April 36.

[^453]: Interview with the author, Washington D.C. 24.10.01.

[^454]: Larry Noble argued that \'a numbers game is played in the OGC.\'
    The larger, more complex, cases make the numbers look bad and the
    average case closure times look bad. The simple cases that involve
    *malum prohibitum* violations are more quickly resolved and \'chalk
    up the numbers.\' Interview with the author, Washington D.C.
    17.10.01.

[^455]: Interview with the author, Washington D.C. 16.10.01.

[^456]: Interview with the author, Washington D.C. 16.10.01.

[^457]: Interview with the author, Washington D.C. 22.10.02.

[^458]: Light L (1980) 1024.

[^459]: Although externally generated complaints uncover proportionally
    more cases of substantive non-compliance than the FEC, many are
    easily detectable technical violations, like late filing or
    exceeding the annual \$25,000 contribution limit. PWC (1999) E-S 4.
    However, some have supported the enforcement of low level violations
    as it sends a message to the regulated community that the Commission
    is enforcing the full spectrum of the law. U.S. House of
    Representatives, Committee on House Administration, Testimony of
    Kevin Bacon (PWC) May 18 1999 16.

[^460]: Interview with the author, Washington D.C. 17.10.01.

[^461]: Interview with the author, Washington D.C. 24.10.01.

[^462]: Letter written by Staff Director John Surina to A. J. Cowett in
    response to the latter\'s thesis entitled *\'Walking on
    Eggshells\':* June 20 1989.

[^463]: Cowett A (1989) 60.

[^464]: PWC (1999) 3.3.7.

[^465]: Cowett A (1989) quoting John Surina, 59.

[^466]: U.S. House of Representatives, Subcommittee on Government
    Management, Information and Technology, Committee on Government
    Reform and Oversight, Testimony of Lawrence Noble, FEC General
    Counsel, March 5 1998.

[^467]: Memorandum to the Commission written by Lawrence Noble FEC
    General Counsel, September 22 1992, PWC audit 4.3.3.3.

[^468]: Colloquay (1994) 258.

[^469]: Colloquay (1994) 259.

[^470]: Disclosure made in 1994 under the Freedom of Information Act,
    PWC audit 4.3.3.3.

[^471]: Interview with Scott Thomas, Washington D.C. 18.10.01.

[^472]: Lochner T and Cain B (2000) \'The Enforcement Blues: Formal and
    Informal Sanctions for Campaign Finance Violations\':
    *Administrative Law Review*, **52** 635.

[^473]: Thomas S and Bowman J (2000) 582.

[^474]: Interview with Commissioner Scott Thomas, Washington D.C.
    18.10.01.

[^475]: Thomas S and Bowman J (2000) 582.

[^476]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee Treasury, Postal Service, and General Government
    Appropriations, fiscal year 1998 68.

[^477]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee Treasury, Postal Service, and General Government
    Appropriations, FY 1999 9.

[^478]: If a case is to be officially defined as low rated, its EPS
    numerical score must fall below an established threshold. U.S. House
    of Representatives, Committee on Appropriations, Subcommittee
    Treasury, Postal Service, and General Government Appropriations,
    Congressional testimony of Larry Noble, March 5 1998 38.

[^479]: PWC (1999) E-S 4.

[^480]: U.S. House of Representatives, Committee on Government Reform
    and Oversight, Federal Election Commission Enforcement Actions:
    Foreign Campaign Contributions and other FECA Violations, March 31,
    1998.

[^481]: General Counsel\'s Report in the matter of Greenberg, Traurig,
    Hoffman, Lipoff, Rosen and Quentel *et al* MUR 4638 December 19,
    1997.

[^482]: [www.comm.house.gov](http://www.comm.house.gov/) 7.10.02.

[^483]: U.S. House of Representatives, Committee on Government Reform
    and Oversight, Testimony of Henry Waxman (D-CA), March 31, 1998,
    101-102.

[^484]: U.S. House of Representatives, Committee on Government Reform
    and Oversight, \'FEC Enforcement Practices and the Case against
    Foreign National Thomas Kramer: Did Prominent DNC Fundraisers
    Receive Special Treatment? November 5, 1998, 2-3. Interim Report.
    [www.house.gov/reform/reports/fundraising/index.htm](http://www.house.gov/reform/reports/fundraising/index.htm).
    Full Report

[^485]: Interview with the author, Washington D.C. 17.10.01.

[^486]: U.S. House of Representatives, Committee on Government Reform
    and Oversight, March 31, 1998 4.

[^487]: Interview with the author, Washington D.C. 16.10.01.

[^488]: Interview with the author, Washington D.C. 18.10.01.

[^489]: The FGF is a non-profit organisation established to inform the
    public about threats to First Amendment Rights and unnecessary
    government interference and regulation.

[^490]: U.S. House of Representatives, Hearing on Oversight of the
    Federal Election Commission, Testimony of Bob Dahl, President of the
    Fair Government Foundation, March 5 1998 16.

[^491]: Interview with the author, Washington D.C. 18.10.01.

[^492]: Interview with the author, Washington D.C. 17.10.01.

[^493]: U.S. House of Representatives, House Administration Committee,
    FEC Authorisation Hearing, 18.5.99
    [www.house.gov/cha/business](http://www.house.gov/cha/business)
    28.11.00.

[^494]: Interview with the author, Washington D.C. 17.10.01.

[^495]: Interview with the author, Washington D.C. 16.10.01.

[^496]: Interview with the author, Washington D.C. 24.10.01.

[^497]: Interview with the author, Washington D.C. 17.10.01.

[^498]: Interview with the author, Washington D.C. 22.10.01.

[^499]: Interview with the author, Washington D.C. 26.10.01.

[^500]: Interview with the author, Washington D.C. 23.10.01.

[^501]: Interview with the author, Washington D.C. 23.10.01.

[^502]: Interview with the author, Washington D.C. 26.10.01.

[^503]: Interview with the author, Washington D.C. 22.10.01.

[^504]: A comment made by Jan Baran, Interview with the author,
    Washington D.C. 17.10.01.

[^505]: In accordance with the GPRA, the Commission aimed to \'conclude
    some or all of the major cases involving complex legal issues
    remaining from earlier election cycles, 1996, and 1998.\' It also
    aimed to \'initiate 10 or 15 civil actions to enforce the law under
    2 U.S.C. 437G(a)(6).' FEC Budget Request (2001) Enforcement
    [www.fec.gov](http://www.fec.gov/) 11.7.01.

[^506]: LA Forge A (1996) \'The Toothless Tiger, Structural, Political
    and Legal Barriers to Effective FEC Enforcement: An Overview and
    Recommendations\': *The Administrative Law Journal*, **10** 362.

[^507]: Former Staff Director, John Surina described how chairmen often
    felt pressure to be the fourth swing vote in order to avoid their
    tenure being associated with too many deadlocked vote tallies. He
    also noted that once a Commissioner\'s Chairmanship had ended, that
    contrarian vote might be reversed at a later stage of the
    enforcement process. Therefore, the willingness to risk antagonising
    one's Party or a particular sectional interest may only be a
    temporary aberration with some FEC Chairmen. Letter from John Surina
    held by the author, June 20 1989.

[^508]: Cowett A (1989) \'Walking on Eggshells: The Federal Election
    Commission and Political Regulation\' 44.

[^509]: FECA Title 2 437c (D) 5.

[^510]: PWC (1999) 3.3.6 3-21.

[^511]: PWC (1999) 3.3.6 3-21.

[^512]: Interview with the author, Washington D.C. 22.10.01.

[^513]: Interview with the author, Washington D.C. 24.10.01.

[^514]: Interview with the author, Washington D.C. 22.10.01.

[^515]: FEC Annual Report (1997) 31.

[^516]: Alex Vogel, general counsel at the NRSC, criticised the
    political structure of the Commission and referred to the sometimes
    difficult relationship between Commissioners and the FEC general
    counsel. He commented: \'The political structure that is imposed on
    the Commission, the General Counsel's office does something, then it
    goes to the Commission. The political structure of the Commission, I
    think, makes that impossible.\' \'The problem is that so many people
    have been in charge that you\'ve had the Commissioners fighting
    Larry and Larry was the Office of the General Counsel and was such a
    clearly defined political force on one side or the other. The other,
    as far as I was concerned. It was better to have no enforcement.\'
    Interview with the author, Washington D.C. 26.10.01.

[^517]: The Commission has recommended on several occasions that it be
    granted injunctive relief and random audit power. Injunctive relief
    would allow the Commission to expedite its enforcement procedures in
    cases where violations were clearly being committed in the run up to
    an election. Additionally, the Commission has asked Congress to
    restore its power to randomly audit the accounts of political
    committees in order to help facilitate voluntary compliance with the
    Act. This power was revoked by Congress in 1979. Both
    recommendations were contained in FEC Annual Reports 1996 and 1997
    and neither has been authorised by Congress. Cain & Lochner also
    note how the FEC has called for the reintroduction of random audit
    authority in almost every annual appropriation hearing. Cain B &
    Lochner T (1999) \'Equity and Efficacy in the Enforcement of
    Campaign Finance Laws\': *Texas Law Review*, **77** 1899. One might
    argue that the Commission now \'self-censors\' the legislative
    recommendations it makes to Congress, especially in the area of
    enforcement, as it views the resultant Congressional inertia as
    unproductive. Therefore, the strategy has changed to one that
    involves making recommendations that Congressmen are more amenable
    to. The administrative fines programme for *malum prohibitum*
    violations would be an example of this.

[^518]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee Treasury, Postal Service, and General Government
    Appropriations, Fiscal Year 1998, 8-9.

[^519]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee Treasury, Postal Service, and General Government
    Appropriations, Fiscal Year 1998, 31.

[^520]: FEC Annual Report (1997) 31. \'Detailed Budget History\' FEC
    Congressional Affairs Office, Revised July 2001.

[^521]: Cowett described how Commissioners might \'bounce\' ideas off
    the special deputies in order to gauge Congressional opinion before
    committing to a particular action. Cowett A (1989) 40.

[^522]: Common Cause described the *ex officios*/special deputies as
    \'little more than spies.\' Cowett A (1989) 40.

[^523]: Donovan B (1993) \'Ruling may unleash torrent of challenges to
    the FEC\': *Congressional Quarterly Weekly Report*, **51** (43)
    2944.

[^524]: The Center for Responsive Politics campaigned for the removal of
    FEC *ex-officios.* They argued that *ex-officios* undermined both
    the Commission\'s independence and the confidentiality of its
    investigations.
    [www.opensecrets.org/pubs/law](http://www.opensecrets.org/pubs/law)
    15.4.02.

[^525]: Interview with the author, Washington D.C. 22.10.01.

[^526]: U.S. House of Representatives, Committee on House
    Administration, Subcommittee on Elections, Fiscal Year 1994,
    168-175.

[^527]: Interview with the author, Washington D.C. 17.10.01.

[^528]: Interview with the author, Washington D.C. 17.10.01. Another
    case that was said to illustrate the ability of Congress to punish
    Commissioners for an unpopular vote involved Neil Staebler, a
    Democratic Party appointee. Commissioner Staebler became the \'swing
    vote\' siding with Republicans in the 1975 advisory opinion
    concerning Sun Oils\' political action committee, SunPAC. The 4-2
    vote permitted SunPAC to solicit voluntary contributions from its
    employees and stockholders. This decision was particularly unpopular
    with organised labor who successfully lobbied to ensure that
    Staebler was not re-appointed. Light L (1980) \'Reformed-spawned
    Agency Stirs Discontent\': *Congressional Quarterly Weekly Report*,
    April 19, 1021.

[^529]: Mann T (1997) \'Campaign Finance Sourcebook, Implementing and
    Enforcing Federal Campaign Finance Law\': 277.
    [www.brook.edu](http://www.brook.edu/) 20.6.02.

[^530]: The Federal Election Commission, \'Twenty Year Report\' April
    1995 37.

[^531]: FECA 1974 437c (2) (i) two of the members, not affiliated with
    the same political party, shall be appointed for terms ending on
    April 30, 1977; (ii) two of the members, not affiliated with the
    same political party, shall be appointed for terms ending on April
    30, 1979; (iii) two of the members, not affiliated with the same
    political party, shall be appointed for terms ending on April 30,
    1981. Federal Election Laws compiled by the Federal Election
    Commission, January 2001 25.

[^532]: Vacillation over FEC appointments and re-appointments has meant
    that some seats have either remained empty, often for extended
    periods, or vacancies have been filled through \'holdover\' seats
    where Commissioners continue to perform their duties after their
    term of office has expired. Commissioner Mason was asked how his
    views on enforcement differed from those of his predecessor?
    Commissioner Mason replied: \'Well, that's difficult to say because
    the seat I\'m in was vacant for a couple of years.\' Interview with
    the author, Washington D.C. 22.10.01. In an interview with Donald
    McGahn, General Counsel of the NRCC, this issue of Commissioner
    seats remaining empty was raised. He commented; \'Yea, right now I
    believe that Commissioner Daryl Wold and Karl Sandstrom\'s terms are
    up. I think they are holdovers. So far there hasn\'t been any action
    publicly on what\'s gonna happen there and large part of that is
    Senate confirmation. Right now the Senate is controlled by the
    opposition Party so you know, the FEC is the least of the priorities
    right now, what with fighting terrorism and all that. You\'re right,
    notwithstanding that, historically it took Brad Smith, David Mason,
    and Daryl Wold for ever to get on the Commission, and Karl.\'
    Interview with the author, Washington D.C. 16.10.01. Another reason
    for the delay in filling vacancies is the increasing use of
    \'holds\' in the Senate. A hold is where a Senator requests that the
    leadership delay a pending activity. No rule authorises or
    legitimises a hold, yet its use has grown over time through custom
    and practice. Senators are not obligated to make any request for a
    hold public and secrecy usually dominates the practice.
    [www.tcf.org](http://www.tcf.org/) 7.7.02.

[^533]: Cowett A (1989) 43. The subcommittee on Privileges and Elections
    is responsible for FEC Commissioner confirmation hearings.

[^534]: Center for Responsive Politics \'Justice Delayed Justice
    Denied\' [www.opensecrets.org](http://www.opensecrets.org/) 3.3.01.

[^535]: The relationship between Stark and AMPAC is reviewed in a latter
    section of this chapter discussing partisan deadlock on the
    Commission.

[^536]: Interview with the author, Washington D.C. 18.10.01.

[^537]: [www.rules.senate.gov.hearings](http://www.rules.senate.gov.hearings/)
    7.7.02.

[^538]: Larry Noble commented that \'what you\'re seeing in hearings, is
    what is already been decided. The hearings are somewhat *pro forma*,
    in fact, in some instances, they waive the hearings.\' Interview
    with the author, Washington D.C. 17.10.01.

[^539]: FECA 1974 437c (1). Although the Commission has variously been
    described as \'independent,\' \'partisan,\' and \'non-partisan,\'
    the body is most accurately described as \'bi-partisan.\'

[^540]: FECA 1974 437g (a) 2.

[^541]: FECA 1974 437c (5).

[^542]: [www.opensecrets.org/pubs/law](http://www.opensecrets.org/pubs/law)
    3.3.01

[^543]: Prior to the *Buckley v Valeo* decision, FEC confirmation
    hearings held in the U.S. House of Representatives took place in the
    Committee on House Administration which was chaired by long-time
    reform opponent, Wayne Hays (D-Oh). As House members are constantly
    electioneering due to their two-year terms of office, they have been
    particularly sensitive to reform efforts and have jealously guarded
    their prerogatives in this area. By authorising the House leadership
    to select Commissioners and participate in the confirmation of
    nominees, the Chambers opponents to the 1974 Act were placated.

[^544]: [www.opensecrets.org/pubs/law](http://www.opensecrets.org/pubs/law)
    3.3.01 Tina VanBrakle (Director of Congressional Affairs at the FEC)
    alluded to the Congressional domination of the appointment process
    despite the Buckley decision. She commented, \'Yes, oh yes, even
    though the President nominates, we know how it works, it\'s a
    gentleman\'s agreement, the names go forward.\' Interview with the
    author, Washington D.C. 18.10.01.

[^545]: Wilkinson F (1994) \'Best Little Sinecure in Washington, no-one
    does less with more than the Federal Election Commission\': *Rolling
    Stone*, **680** 37.

[^546]: President Reagan replaced Frank Reiche by giving fellow
    Republican Thomas Josefiak a recess appointment. More recently,
    President George W. Bush replaced Daryl Wold by awarding a recess
    appointment to Michael Toner, the former chief counsel to the
    Republican National Committee. Larry Noble commented how Toner would
    prove a useful ally for Bush and his Party on the Commission when
    they write new rules to implement the Bipartisan Campaign Reform Act
    (BCRA) 2002. [www.motherjones.com](http://www.motherjones.com/)
    30.6.02. Common Cause *et al* have expressed concern that the
    Commission has attempted to emasculate much of the BCRA through
    drafting new rules and through narrow interpretation in order to
    undermine the original intent of Congress. Mesidor C
    [www.commoncause.org](http://www.commoncause.org/) 30.6.02.

[^547]: Interview with author, Washington D.C. 22.10.01.

[^548]: The Center for Responsive Politics in \'Justice Delayed Justice
    Denied\' set out how successive Presidents have been unwilling to
    risk a battle with Congress over FEC appointments.
    [www.opensecrets.org](http://www.opensecrets.org/) 7.7.02.

[^549]: On the subject of FEC appointments, Francis Wilkinson commented,
    \'Clinton did more to undermine legitimate reform than a thousand
    Rostenkowski\'s famously free steak dinners. After months of
    unexplained delay, the President announced his intention to
    reappoint Lee Ann Elliott and Danny Lee McDonald to their third
    terms on the Federal Election Commission. Clinton owed nothing to
    either of them; he could have named any number of energetic and
    effective people to the six-member FEC. But Clinton was unwilling to
    buck the established way of doing business, which is to cede control
    over FEC appointments to Congress.\' Wilkinson F (1994) 37. Similar
    criticisms of President Clinton were expressed in a *New York Times*
    editorial, \'There are four openings on the Commission, which he
    could have filled with distinguished, independent individuals eager
    to staunch the flow of tainted money. Indeed, the people he asked to
    rally support for campaign finance reform, former Vice President
    Walter Mondale and former Senator Nancy Kassebaum Baker, urged
    yesterday that he do that. Instead he is moving to appoint political
    partisans with no gusto for reform or strong enforcement. This week,
    after Senate Majority leader, Trent Lott, said he would hold up
    other nominations until the four F.E.C. seats were \'filled to our
    mutual satisfaction,\' Mr. Clinton confirmed his intention to
    rubber-stamp Mr. Lott\'s two nominees. \'Mr. Clinton\'s F.E.C.
    Fold\': *New York Times*, June 19 1997, 22.

[^550]: Barnes J (1997) \'Pit Bulls Shouldn\'t Apply, Shh! Don\'t Wake
    the Watchdog\': *National Journal*, **29** (12) 583. Elizabeth Drew
    described President Clinton\'s hypocrisy towards campaign finance
    reform. She wrote, \'an indelible scene from the Clinton-Gingrich
    fandango following the Republican take-over of the House was of the
    two pudgy, gray-haired, garrulous wonks at a more-or-less
    impoverished town meeting in New Hampshire on a sunny Sunday
    afternoon in January 1995, shaking hands on Gingrich\'s proposal
    that they name a \'blue-ribbon commission\' on campaign finance
    reform. Clinton accepted in a heartbeat. A commission was never
    formed, though Clinton, knowing that Gingrich didn\'t really want
    reform, made some lets pretend moves toward naming commission
    members -exploiting as he often did, well-meaning and even
    distinguished figures. Clinton, who could change his position in a
    flash, was at least consistent in his cynicism on the subject.\'
    \'He supports it but he doesn\'t do anything\' former Clinton aide
    George Stephanopoulos told me. He\'s conflicted.\' Drew E (1999)
    *\'The Corruption of American Politics, What Went Wrong and Why\'*:
    Birch Lane Press, 144.

[^551]: Interview with the author, Washington D.C. 17.10.01.

[^552]: The Commission ceased to exercise its executive powers on March
    22 1976. The Federal Election Commission (1995) \'Twenty Year
    Report\': 5.

[^553]: The 1976 amendments to the 1974 Act took effect in May 1976,
    when the Commission was reconstituted. The Federal Election
    Commission (1995) \'Twenty Year Report\': 5.

[^554]: The only Commissioner not to seek re-appointment was the then
    FEC Chairman Thomas B. Curtis. Wayne Hays had been successful in
    discouraging Curtis from sitting on the reconstituted panel by
    proscribing Commissioners from engaging in private business. As this
    condition meant that Curtis would have had to give up his St. Louis
    law practice, he asked the President not to re-appoint him. Jackson
    B (1990) *\'Broken Promise, Why the Federal Election Commission
    Failed*\': Washington D.C. Twentieth Century Fund Paper, Priority
    Press Publications, 28.

[^555]: [www.ford.utexas.edu](http://www.ford.utexas.edu/) 7.7.02.

[^556]: Jackson B (1990) 29.

[^557]: Curtis T (1979) \'Reflections on Voluntary Compliance Under the
    Federal Election Campaign Act\': *Case Western Reserve Law Review*,
    **29** 851.

[^558]: Gross K (1996) \'The Enforcement of Campaign Finance Rules: A
    System in Search of Reform\': *The Administrative Law Journal*,
    **10** 365.

[^559]: Micro-management strategies are the attempts most often
    associated with Congress, which are designed to alter agency
    behaviour. One example alluded to by James Barnes, writing in the
    *National Journal,* noted that, \'Congress doles out the FEC\'s
    annual appropriation and lawmakers haven\'t hesitated to rein in the
    agency when they think it\'s getting too aggressive.\' Barnes J
    (1994) \'Wobbly Watchdog\': *National Journal*, **26** (14) 777.

[^560]: For a description of the most recent prescriptions for the
    introduction of an apolitical enforcement mechanism see, Democracy
    21 (2002) *No Bark, No Bite, No Point*, *A Case for Closing the
    Federal Election Commission and Establishing a New System for
    Enforcing the Nation\'s Campaign Finance Laws*: Project FEC,
    Washington D.C.

[^561]: FECA 1974 437c (3).

[^562]: Lochner T & Cain B (1999) 1896.

[^563]: [www.opensecrets.org](http://www.opensecrets.org/) 3.3.01
    Referring to Senator Stevens statement made whilst sitting on the
    Senate Rules Committee July 15, 1987.

[^564]: Shenk described this as \'a polite, but not rigidly observed
    tradition.\' Shenk J (1997) \'Why the Federal Election Commission is
    the lap dog for the political class\': *U.S. News and World Report*,
    January 20, 37.

[^565]: Wilkinson F (1994) 37. Peter Stone, writing in the *National
    Journal* opined that \'the White House continues to let
    Congressional leaders handpick FEC Commissioners, which critics say
    is akin to letting the foxes guard the chicken coup.\' Stone P
    (1993) \'Teaching a Lapdog to Bite\': *National Journal*, 2914.

[^566]: Interview with the author, Washington D.C. 25.10.01. Democracy
    21 has been critical of the links Commissioners have had with the
    regulated community prior to their appointment. Of the 20 appointees
    who have served on the Commission since it was established, 16 had
    such ties. Curtis, Staebler, Thompson, Tiernan and Springer were
    former Congressmen. Friedersdorf, Mason, McGarry and Sandstrom had
    been Congressional or White House Staff. Aikens, Toner and Josefaik
    had political Party backgrounds and Elliot, Harris, Potter and Wold
    had represented members of the regulated community before the FEC or
    and the courts. Democracy 21 2002 61.

[^567]: Interview with the author, Washington D.C. 16.10.01.

[^568]: Alexander H (1984) *Financing Politics, Money, Elections and
    Political Reform*: Washington D.C. Congressional Quarterly Press 47.

[^569]: Interview with the author, Washington D.C. 22.10.01.

[^570]: Commissioner Mason commented that \'a lot of senior staff have
    been here since the Commission opened up. So people have got kind of
    set in their ways and thinking.\' Interview with the author,
    Washington D.C. 22.10.01.

[^571]: Cowett A (1989) \'Walking on Eggshells\': \'The Federal Election
    Commission and Political Regulation,\' senior thesis Harvard
    College, 43.

[^572]: Wilkinson F (1994) 38.

[^573]: Interview with the author, Washington D.C. 18.10.01.

[^574]: *Congressional Quarterly Weekly Report* described how a defeated
    House candidate (Rep. Robert Tiernan D R.I.) and friend of majority
    leader Tip O\' Neill had indicated his interest in a Commission
    seat. Fred Wertheimer, then President of Common Cause, was quoted at
    the time as saying, \'the law setting up this commission shouldn\'t
    be considered the Congressional Retirement Act of 1974.\' Shortly
    thereafter, the AFL-CIO informed O\'Neill that it wished to place a
    spokesman on the election commission. Comment (1974) \'Election
    Commission: Regulator of Refuge?\': *Congressional Quarterly Weekly
    Report*, 3442.

[^575]: Interview with the author, Washington D.C. 17.10.01.

[^576]: Jackson B (1990) 10.

[^577]: Project FEC Task Force, a project of Democracy 21, has published
    four principles upon which they base their \'model\' enforcement
    body. The principles include regulatory independence, greater
    enforcement authority, adequate funding and meritorious
    appointments. On meritorious appointments the statement read: \'The
    process for appointing the person or persons in charge of the
    enforcement entity must be designed to create the best chance for
    appointments based on qualifications and merit, not political or
    ideological ties. The process must create the best chance for
    obtaining appointees who recognise that the public, not the
    \'regulated community\' is their principal constituency.\' \'Project
    FEC Task Force Releases \'Statement of Principles\' Press Release
    February 20, 2001 2.

[^578]: Interview with the author, Washington D.C. 18.10.01.

[^579]: Abstentions are when a Commissioner decides not to cast a yes or
    no vote. Letter to the author, from Ronald M. Harris, Freedom of
    Information Officer, Federal Election Commission, 2.10.00.

[^580]: A recusal is when Commissioners voluntarily absent themselves
    from any discussion of a particular matter. Harris R 2.10.00.

    The Commissioner does not have to divulge the reason for a recusal
    but they, according to law, usually involve: bias or conflict of
    interest, or because of the relationship between someone acting in a
    judicial, or in this case, quasi judicial capacity and the
    respondent/s.
    [www.lectlaw.com/def2/q118](http://www.lectlaw.com/def2/q118).
    10.11.00.

    It would be difficult to conclude whether a large number of recusals
    on a Commissioner\'s record meant an indication of high ethical
    calibre, or a general disinterest in enforcement.

[^581]: Wilkinson F (1994) 38.

[^582]: [www.fec.gov.members/toner](http://www.fec.gov.members/toner)
    27.7.02. \'Trevor Potter, Commissioner.\' Biography supplied by Ron
    Harris, FEC Press Officer, Press Release January 1995.

[^583]: [www.publicintegrity.org](http://www.publicintegrity.org/)
    27.7.02.

[^584]: Peter Stone commented in the National Journal, \'The FEC\'s
    tougher stances are generally attributed to the influence of Trevor
    Potter, a Republican and the Commission\'s vice chairman, who has
    surprised many observers with his outspoken advocacy of stronger
    enforcement.\' Stone P (1993) 2914.

[^585]: Interview with the author, Washington D.C. 26.10.01.

[^586]: Wilkinson F (1994) 38.

[^587]: Interview with the author, Washington D.C. 22.10.01.

[^588]: Barnes continued, \'most election lawyers will speak about the
    issue only if guaranteed anonymity. \'It\'s an outrage,\' one said.
    Said another: \'The renomination efforts of commissioners consume
    the energies and attention of commissioners, the commission staff
    and sometimes apparently \[Members of Congress\] and even those who
    represent people before the commission.\' Barnes J (1994) \'Watching
    the Watchdog\': *National Journal*, April 23, 985.

[^589]: [www.publicampaign.org](http://www.publicampaign.org/) 27.7.02.

[^590]: That particular statement is often expressed but is inaccurate.
    The law states that \'No more than 3 members of the Commission
    appointed under this paragraph may be affiliated with the same
    political party.\' FECA 1974 as amended, 437c (a) (1).

[^591]: [www.senate.gov/-rpc](http://www.senate.gov/-rpc) 27.7.02.

[^592]: FECA 1974 as amended, Title 2 437c (a) 2.

[^593]: FEC Annual Report (1997) 31.

[^594]: Commissioner Danny Lee McDonald may serve until 2005.
    Commissioner Mason, the current Chairman, may serve until 2009.
    Commissioner Scott Thomas may serve until 2009. Commissioner Karl
    Sandstrom\'s term expired on 30 April 2001 and he is currently
    serving as Vice-Chairman. Commissioners whose terms have expired, if
    not renominated, may continue to serve until their replacement has
    been appointed. Commissioner Bradley Smith may serve until 2005.
    Commissioner Toner may serve until 2008.

[^595]: The law stated that \'such members of the Commission shall not
    engage in any other business, vocation, or employment. Any
    individual who is engaging in any other business, vocation, or
    employment at the time of his or her appointment to the Commission
    shall terminate or liquidate such activity no later than 90 days
    after such appointment.\' FECA Title 2 437c (d) (3).

[^596]: Interview with the author, Washington D.C. 16.10.01.

[^597]: Interview with the author, Washington D.C. 18.10.01.

[^598]: Interview with the author, Washington D.C. 17.10.01.

[^599]: Interview with the author, Washington D.C. 17.10.01.

[^600]: Interview with the author, Washington D.C. 22.10.01.

[^601]: Interview with the author, Washington D.C. 26.10.02.

[^602]: Jan Baran alluded to the FEC\'s rules prohibiting *ex parte*
    communications. The Federal Code of Regulations states \'no person
    outside the agency shall make or cause to be made to any
    Commissioner or any member of any Commissioner\'s staff any *ex
    parte* communication regarding any candidate or committee\'s
    eligibility for or entitlement to public funding; any audit; or any
    pending or prospective Commission decision regarding litigation,
    including whether to initiate, settle, appeal, or seek certiorari
    (to be informed of, or to be made certain in regard to), or any
    other decision concerning a litigation matter.\' CFR 201.3 (a). The
    regulations also set out that Commissioners are to prevent
    individuals from breaking these rules and if unable to, they should
    report the matter to the \'Designated Agency Ethics Official.\' CFR
    201.3 (c) (1).

[^603]: Jim Sasser served for 18 years in the U.S. Senate and after
    being nominated by President Clinton went on to become American
    Ambassador to China 1996-99.

[^604]: Jackson B (1990) 10.

[^605]: Interview with the author, Washington D.C. 22.10.01.

[^606]: Explaining the birth of the FEC, Francis Wilkinson wrote, \'The
    FEC elicits some sympathy for getting off to a bad start in life. It
    was designed in the early 70s to be hide-bound. This is generally
    attributed to Congressional cynicism, which naturally played its
    part. But it was also due to Congress\' recognition that regulating
    political behaviour in a democracy is a very delicate business. The
    creation of a super agency capable of riding roughshod over campaign
    finance activities was rightly viewed with trepidation. Fearful of
    losing control, Congress made the FEC bipartisan, with three
    Republican seats and three Democratic seats. Politicians leaned on
    their Party\'s appointees for favourable treatment; appointees,
    dependent on the politicians for reappointment, often complied.\'
    Wilkinson F (1994) 38.

[^607]:
    #  Thomas S & Bowman J (2000) \'Symposium: Regulation of Politics, Federal Election Commission, Obstacles to Effective Enforcement of the Federal Election Campaign Act\': *Administrative Law Review*, 52 (2) 590. 

[^608]: Interview with Fred Wertheimer, President of Democracy 21, and
    former President of Common Cause, Washington D.C. 25.10.01.

[^609]: La Forge A (1996) \'The Toothless Tiger, Structural, Political
    and Legal Barriers to Effective FEC Enforcement\': *The
    Administrative Law Journal*, **10** 359.

[^610]: Democracy 21, press release relating to \'Project FEC,\' issued
    Tuesday, December 19, 2000.

[^611]: Beinart P (1996) \'TRB From Washington, Doling it Out\': *The
    New Republic*, **214** (15) 6.

[^612]: Carney E (1997) \'Besieged FEC Gets Dissed On All Sides\':
    *National Journal,* **29** (21) 1038.

[^613]: Weiser B & McAllister B (1997) \'The Little Agency That Can\'t,
    Election-Law Enforcer Is Weak by Design, Paralyzed by Division\':
    *Washington Post*, February 12, 1997 1.

[^614]: FECA Title 2. 441a (7) (B) (I).

[^615]: Jackson B (1990) 31-33.

[^616]: [www.opensecrets.org/regulation/deadlock](http://www.opensecrets.org/regulation/deadlock).
    12.11.00.

[^617]: Jackson B (1990) 35. Prior to her FEC appointment, Commissioner
    Elliott had advised the AMA on their PAC activities in Chicago for
    28 years. Staroba K (1990) \'Talking Politics Talking Turkey\':
    *Association Management*, **42** (11) 46.

[^618]: The 83% figure covers the years 1992-1996.
    [www.nvri.org](http://www.nvri.org/) 6.8.02.

[^619]: The law states \'it shall be unlawful for a foreign national
    directly or through any other person to make any contribution of
    money or other thing of value, or to promise expressly or impliedly
    to make any such contribution, in connection with an election to any
    political office or in connection with any primary election,
    convention, or caucus held to select candidates for any political
    office; or for any person to solicit, or accept, or receive any such
    contribution from a foreign national. FECA Title 2. 441e (a).

[^620]: U.S. Senate, Committee on Government Affairs, Investigation into
    the Illegal and Improper Activities Surrounding the 1996
    Presidential Election. [www.senate.gov](http://www.senate.gov/)
    8.8.02.

[^621]: [www.pbs.org/newshour/campaign](http://www.pbs.org/newshour/campaign)
    8.8.02.

[^622]: Conclusions of Bruce Bordner, a doctoral candidate at Woodrow
    Wilson Department of Government,
    [www.public-i.org/story](http://www.public-i.org/story) 29.2.00.
    Kenneth Gross, former FEC Associate General counsel (1980-1986),
    expressed his surprise that there were not more party line splits
    resulting in deadlocked votes. Gross K (1991) The Enforcement of
    Campaign Finance Rules, A System in Search of Reform, *Yale Law &
    Policy Review*, **9** 291. Lawrence Noble has expressed similar
    sentiments saying that the three-to-three partisan splits are
    \'oversold,\' and that it \'oversimplifies the issue to put it in
    straight Republican/Democrat terms.\' Colloquay (1994) \'Federal
    Election Commission Panel Discussion, Problems and Possibilities\':
    *The Administrative Law Journal*, **8** 226-228.

[^623]: Interview with the author, Washington D.C. 24.10.01.

[^624]: Interview with the author, Washington D.C. 22.10.01.

[^625]: Thomas S & Bowman J (2000) 591. Particular cases have been
    written about to support the partisan deadlock thesis, but as they
    number only a few, one might be cautious about their statistical
    reliability. The Center For Responsive Politics refer to the 1988
    case of Conrad Burns, who was subject to a three-year FEC
    investigation that ended in partisan deadlock.
    [www.opensecrets.org/regulation/deadlock](http://www.opensecrets.org/regulation/deadlock)
    12.11.00. Another case involved the Democratic National Committee
    and President Clinton\'s 1992 presidential campaign. The allegations
    involved illegal co-ordination between the candidate and the DNC.
    Shenk J (1997) \'Designed for Impotence\': *U.S. News & World
    Report,* **122** (2) 42.

[^626]: Jan Baran, Wiley, Rein and Fielding. Interview with the author,
    Washington D.C. 17.10.01.

[^627]: See *Democratic Senatorial Campaign Committee v FEC* 745 F.
    (1990), *Common Cause v FEC* 489 F. (1980). The law states, \'any
    party aggrieved by an order of the Commission dismissing a complaint
    filed by such a party under paragraph (1) or by a failure of the
    Commission to act on such complaint during the 120-day period
    beginning on the date the complaint is filed, may file a petition
    with the United States District Court for the District of
    Columbia.\' FECA Title 2. 437g (8) (a).

[^628]: Jackson B (1990) 35-36. See *Common Cause v Federal Election
    Commission* Civil Action 89-0524.

[^629]: Colloquay (1994) 242-43. FECA 437c (b) 1 sets out; \'the
    Commission shall have exclusive jurisdiction with respect to the
    civil enforcement of such provisions.\' Exclusive civil jurisdiction
    also prevents others from attempting to enforce the law through the
    courts. A complainant must lodge their allegation directly with the
    FEC. Such complaints must clearly differentiate between fact and
    hearsay evidence and must be signed, sworn and notarised.

[^630]: Democracy 21 (2002) 15.

[^631]: Interview with the author, Washington D.C. 17.10.01.

[^632]: Light L (1980) 21.

[^633]: [www.public-i.org](http://www.public-i.org/) 10.8.02.

[^634]: Interview with the author, Washington D.C. 26.10.01.

[^635]: U.S. Senate, Committee on Governmental Affairs, \'Investigation
    into the Illegal and Improper Activities Surrounding the 1996
    Federal Elections\': 1997, 6.

[^636]: Mablin M & Gais T (1998) *The Day After Reform: Sobering
    Campaign Finance Lessons from the American States*: New York, The
    Rockefeller Institute Press, 11.

[^637]: Carney E (1997) \'Besieged FEC Gets Dissed On All Sides\':
    *National Journal*, **29** (21) 1038.

[^638]: [www.cfinst.org/eguide/coordin](http://www.cfinst.org/eguide/coordin)
    9.8.02.

[^639]: Suro R (1998) \'FEC Lets \'96 Campaigns Off on \'Issue Ads\':
    *Washington Post*, 21.

[^640]: Interview with the author, Washington D.C. 25.10.01.

[^641]: Suro R (1998) 21. The Commission has sought guidance from
    Congress on what might constitute an \'issue advertisement\' and
    what might constitute an \'electioneering message.\' For example, in
    fiscal year 1999 appropriation hearings Commissioner Thomas said to
    Rep. Anne Northup (R-KY) \'What we are asking in our legislative
    recommendation in that regard is that, if you will, help us to try
    to clarify when there is sufficient coordination to amount to an in
    kind contribution and also help us to define the line between
    something that someone would agree is pure issue advocacy, has
    nothing to do with the Federal Election process, and something that,
    on the other hand, does have to do with the election process; it\'s
    electioneering in purpose and effect in every sense.\' U.S. House of
    Representatives, Committee on Appropriations, Subcommittee on the
    Treasury, Postal Service, and General Government Appropriations,
    1999 25.

[^642]: PWC (1999) 4.3.3.5.

[^643]: Interview with the author, Washington D.C. 26.10.01.

[^644]: *Buckley v Valeo* (1976) 424 U.S. 44 n.52.

[^645]: [www.commoncause.org](http://www.commoncause.org/) 8.8.02.

[^646]: Thomas S & Bowman J (2000) 596.

[^647]: [www.fec.gov/members/thomas](http://www.fec.gov/members/thomas)
    29.7.02.

[^648]: Democracy 2 (2002) 55.

[^649]: Interview with the author, Washington D.C. 17.10.01.

[^650]: Other examples where the Commission has \'locked-up\' in cases
    involving \'express advocacy\' have included: MUR 4204 (Americans
    for Tax Reform), MUR 3678 (Clyde Evans), MUR 3616 (Nita Lowey for
    Congress), MUR 3376 (Gerry Studds for Congress Committee), MUR\'s
    3167 & 3176 (Christian Coalition), and MUR 3162 (Citizens for
    Informed Voting in the Commonwealth).
    [www.fec.gov/members/thomas](http://www.fec.gov/members/thomas).
    11.8.02.

[^651]: [www.fecwatch.org/law/court/opinion/vshl](http://www.fecwatch.org/law/court/opinion/vshl)
    11.8.02.

[^652]: When serving on the Commission, Commissioners Joan Aikens and
    Lee Ann Elliott also adopted the \'magic words\' approach to
    defining what constituted express advocacy. See MUR 4204 Americans
    for Tax Reform as a representative example of this legal
    disposition. [www.fec.gov](http://www.fec.gov/) 13.8.02.

[^653]: Interview with the author, Washington D.C. 18.10.01.

[^654]: Interview with the author, Washington D.C. 18.10.01.

[^655]: See MUR 4922 Suburban O\' Hare Commission (\'SOC\') involving
    express advocacy. [www.fec.gov/thomas](http://www.fec.gov/thomas)
    29.7.02.

[^656]: Buckley (1976) 424 U.S. 78. Thomas S & Bowman J (2000) 597.

[^657]: FECA, 2 U.S.C. 441a (a) (7) (B) (I) 1994. Thomas S & Bowman J
    (2000) 598.

[^658]: FECA 431 (17).

[^659]: 11 C.F.R. 109.1(b)(4)(i) (1999). Thomas S & Bowman J (2000) 598.

[^660]: Thomas S & Bowman J (2000) 600.

[^661]: The court ruled that \'the First Amendment required different
    treatment for \'expressive,\' \'communicative\' or \'speech-laden\'
    coordinated expenditures, which feature the speech of the spender,
    from coordinated expenditures on non communicative materials such as
    hamburgers or travel expenses for campaign staff.\' Thomas S &
    Bowman J (2000) 601.

[^662]: [www.wrf.com/publications](http://www.wrf.com/publications)
    9.8.02.

[^663]: Thomas S & Bowman J (2000) 603.

[^664]: Thomas S & Bowman J (2000) 603.

[^665]: Thomas S & Bowman J (2000) footnote 140 at 599.

[^666]: Interview with the author, Washington D.C. 22.10.01.

[^667]: Interview with the author, Washington D.C. 26.10.01.

[^668]: Gordon L (1997) *\'Colorado Republican Federal Campaign
    Committee v Federal Election Commission*: A Court Divided-One
    Opinion Properly Subjects Campaign Finance Jurisprudence to a
    Reality Check\': *Minnesota Law Review*, **81** (6) 1568.

[^669]: Interview with the author, Washington D.C. 18.10.01.

[^670]: He continued to say that sometimes, no matter how well you put a
    case together, you knew Commissioners weren\'t going to go forward,
    the 1996 violations affecting both parties were an example.
    Interview with the author, Washington D.C.17.10.01.

[^671]: Interview with the author, Washington D.C. 17.10.01.

[^672]: Interview with the author, Washington D.C. 24.10.01.

[^673]: Lawrence Noble described how all \'FEC enforcement inevitably
    involves the regulation of core first amendment, or raises first
    amendment issues.\' He said that, \'If the FEC was to decide not to
    get involved in core first amendment areas, it might as well close
    the door, go home.\' Interview with the author, Washington,
    17.10.01.

[^674]: Interview with the author, Washington D.C. 16.10.01.

[^675]: This was the high-profile 1975 Sun Oil political action
    committee case (SUNPAC). Commissioner Staebler was accused of being
    anti-union by allowing corporations to solicit political
    contributions. Staebler rejected this criticism, commenting, \'I am
    a strong believer in everyone\'s being able to participate in the
    political process and I think the law required the decision I
    reached. People accused me of stretching the law. I did not, but if
    had had to stretch, I would have, because I think it would be very
    bad government, very bad politics, to permit one part of our society
    to do things forbidden to other parts.\' Muller N (1979)
    \'Reflections on the Election Commission\': *Regulation*,
    March/April 37.

[^676]: Commissioner Mason saw Trevor Potter as responsible for enabling
    the Commission to enforce areas of the law that infringed first
    amendment rights. Interview with the author, Washington D.C.
    22.10.01.

[^677]: Commissioner Mason, appointed in 1998, occupies the seat
    formerly held by Trevor Potter, who resigned in 1995.

[^678]: This appointment was very controversial, and was opposed by
    members of Congress and the \'good government groups.\' Bill
    Allison, senior editor at the Center for Public Integrity described
    it as a bit like putting a tax cheat in charge of the IRS, with that
    kind of contempt for the laws. Interview with the author, Washington
    D.C. 22.10.01. The Clinton administration used this controversy to
    their advantage by not opposing his nomination. They were able to
    trade his appointment for concessions from the Republicans on
    selecting judges. For that reason, the Bradley Smith appointment
    became important for the Administration. Interview with Lawrence
    Noble, Washington D.C. 17.10.01. According to Trevor Potter this
    belief that the statute stifled political activity, and was
    unconstitutional, or at least undesirable, was present in the 1980s
    and 1990s, but Commissioner Smith is just more vocal about his
    views. Interview with the author, Washington D.C. 24.10.01. In 2001,
    Professor Bradley Smith published, *Unfree Speech, the Folly of
    Campaign Finance Reform*: Princeton University Press.

[^679]: Interview with the author, Washington D.C. 18.10.01.

[^680]: Interview with the author, Washington D.C. 18.10.01.

[^681]: Commissioner Mason said that, \'Where we are locked up three
    /three on a policy issue, it is unrealistic to expect that when the
    same issue is enthused into an enforcement case that we are going to
    do anything other than lock-up three/three.\' Interview with the
    author, Washington D.C. 22.10.01.

[^682]: Commissioner Trevor Potter served 1991-1997. FEC Twenty Year
    Report, 36.

[^683]: Interview with the author, Washington D.C. 18.10.01.

[^684]: Interview with the author, Washington D.C. 17.10.01.

[^685]: A number of articles, speeches, concurring and dissenting
    opinions written by the Commissioners can be accessed from
    www.fec.gov .

[^686]: FEC Budget Request (2001) [www.fec.gov](http://www.fec.gov/)
    11.7.01.

[^687]: FEC *Twenty Year Report* (1995) 10. During 1984, 27 court cases
    were closed. The FEC won 19, lost 3, 3 were voluntarily dismissed
    and 2 were dismissed as moot. FEC Report *The First Ten Years* 10.

[^688]: Ian Stirton, FEC Press Office 24.4.02. The PWC (1999) audit set
    out that the FEC had referred 18 cases to the Department of Justice
    Public Integrity Section over the past six years. PWC (1999) 2.3.1.
    The formal relationship between the FEC and the Department of
    Justice concerning criminal referrals is set out in the 1978
    Memorandum of Understanding. This establishes the basis upon which
    the FEC should refer serious \'knowing and wilful\' violations to
    the Department of Justice for criminal prosecution. In addition to
    the \'knowing and wilful\' standard, other criteria to be considered
    included whether the violation involved a significant amount of
    money and whether it involved \'aggravated intent.\' Federal
    Register **43** (27) Wednesday, February 8, 1978 5441.

[^689]: FEC Budget Request (2001) [www.fec.gov](http://www.fec.gov/)
    11.7.01.

[^690]: Interview with the author, Washington D.C. 23.10.01.

[^691]: Mablin & Gais explain how campaign finance violations are not
    viewed as seriously as the other cases they routinely deal with.
    They refer to the situation in Minnesota where campaign finance
    cases must be prosecuted. State prosecutors and the judiciary are
    equally unenthusiastic about prosecuting these \'Twinkies\' cases. A
    Minnesota attorney explained the \'Twinkies\' moniker, \'the
    prosecutors believe they do not have the same discretion as they do
    on a burglary, robbery or murder, when it comes to cases like this.
    It\'s assigned to somebody in the Sheriff\'s office who can\'t get
    out of the duty. It\'s nothing to get your teeth into. Then every
    once in a while you get a \'Twinkies\' case that makes them even
    more reluctant to get involved. There was one criminal prosecution
    and conviction of a retired apartment caretaker because he had a
    little get-together for residents of the apartment. A political
    candidate came and spoke and the manager gave out Hostess Twinkies.
    That may be immoral, unconstitutional, fattening, or inappropriate
    given the contents of Hostess Twinkies- but to have been convicted
    of bribery? They didn\'t want to prosecute but they did. There was a
    conviction. Who had the Twinkies all over their face? Not the
    defendant who was found guilty, but the county attorney who
    prosecuted. Yuk!\' Mablin M & Gais T (1998) 42-3.

[^692]: Interview with the author, Washington D.C. 22.10.01.

[^693]: PWC (1999) 3.2.2.

[^694]: Interview with the author, Washington D.C. 16.10.01.

[^695]: Interview with the author, Washington D.C. 23.10.01.

[^696]: Interview with the author, Washington D.C. 18.10.01.

[^697]: Larry Noble is referring to the Supreme Court loss in *Colorado
    Republican Campaign Committee v FEC* 116 2309 (1996). The decision
    obligated the FEC to prove coordination between Party and candidate
    in cases involving allegations of excessive spending. This case was
    significant because it up-held First Amendment protection, which was
    established in *Buckley*, for unlimited expenditures made
    independently of the candidate.
    [www.freedomforum.org](http://www.freedomforum.org/) 9.8.02. Salant
    J (1996) \'Ruling Loosens Reigns on Parties\': *Congressional
    Quarterly Weekly Report*, June 29 1857. The more recent case, *FEC v
    Colorado Republican Campaign Committee* (2001) was successfully
    argued by the FEC. The Supreme Court held that coordinated Party
    expenditures could be limited. The court rejected the Party\'s
    argument that \'unrestricted coordinated spending is essential to a
    Party\'s nature because of its unique relationship with
    candidates.\' <http://supct.law.cornell.edu/html> 9.8.02. The
    Supreme Court Justices voted 7-2 against the FEC in Colorado (1) and
    5-4 in favour of the FEC in Colorado (2). The plurality of opinion
    meant that the rulings had limited application to the facts of each
    case and have not extinguished the controversy or uncertainty
    surrounding a number of enforcement issues.

[^698]: Interview with the author, Washington D.C. 17.10.01.

[^699]: Interview with the author, Washington D.C. 18.10.01.

[^700]: Interview with the author, Washington D.C. 22.10.01.

[^701]: Interview with the author, Washington D.C. 18.10.01.

[^702]: This stipulation did not apply to cases involving the
    Presidential Public Financing Programme. Ordinarily, the Commission
    must seek permission from the Department of Justice to bring a case
    before the Supreme Court, or seek its approval to allow the
    Commission to represent it\'s self before the Court. FEC *Twenty
    Year Report* (1995) 10.

[^703]: In dialogue with Congressmen Kolbe (R-AZ) Commissioner McDonald
    alluded to his colleagues oversight responsibilities at the
    Commission. He commented \'This year I have appointed a litigation
    committee to perform the same function with respect to litigation
    that is undertaken by our General Counsel\'s Office, both on the
    enforcement level to make sure that we have an appropriate balance
    in the scope of the litigation to pursue our enforcement actions,
    and also to be involved in any policy decisions that may necessarily
    arise in the postures in litigation defending the interpretation of
    the constitutionality of the provisions of the Federal Election
    Campaign Act. U.S. House of Representatives, Committee on
    Appropriations, Subcommittee on the Treasury, Postal Service and
    General Government Appropriations, FY 2001 21.

[^704]: Thomas S & Bowman J (2000) 590.

[^705]: Democracy 21 (2002) 36.

[^706]: Comment (1981) \'Toothless Watchdog\': *Commercial Appeal*, June
    2, referred to in Thomas S & Bowman J (2000) \'Symposium: Regulation
    of Politics, Federal Election Commission, Obstacles to Effective
    Enforcement of the Federal Election Campaign Act: *Administrative
    Law Review*, **52** (2) 577.

[^707]: Broder S (1995) \'Watchdog Without A Bite?\': *Washington Post*,
    21.5.95.

[^708]: In their study of state level election agencies, Mablin & Gais
    commented that \'we heard stories about agency budgets being slashed
    after the agency had investigated a legislator or a legislator\'s
    ally.\' Mablin M & Gais T (1998) *The Day After Reform, Sobering
    Campaign Finance Lessons from the American States*: New York, The
    Rockefeller Institute Press, 29.

[^709]: U.S. House of Representatives, House Administration Committee,
    Subcommittee on Elections, FY 1995 180.

[^710]: Cowett A (1989) \'Walking on Eggshells: The Federal Election
    Commission and Political Regulation\': 16. Referring to Weingast B &
    Moran M (1983) \'Bureaucratic Discretion or Congressional Control?
    Regulatory Policy-Making by the Federal Trade Commission\': *Journal
    of Political Economy*, **91** 774-5.

[^711]: Asserting his satisfaction with the Administrative Fine and ADR
    programmes, Jim Kolbe (R-AZ) complimented the Commission for
    thinking \'outside the box.\' U.S. House of Representatives,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 2001 2.

[^712]: [www.fec.gov/members/smith](http://www.fec.gov/members/smith)
    7.9.02. Whilst Commissioner Smith referred to Commissioner Sandstrom
    as \'pro enforcement,\' the previous chapter described him as
    \'unpredictable.\' However, whilst Commissioner Sandstrom\'s
    comments clearly allude to the weakness of traditional enforcement,
    he was instrumental in developing the Commission\'s ADR programme.
    U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 2001 6.

[^713]: Congressmen Hoyer commented, \'I look forward to working with
    you to ensure, as I know the Chairman wants to, as well, not only
    that we have proper disclosure of who is contributing to candidates,
    but also that the public has quick and easy access to that
    information so they can use it to make decisions on elections.\'
    U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 1999 16. During FY 2001 hearings of the same
    committee he commented, \'what the Congress expects and what I think
    the American public expects, is for the elections to be run as
    openly and as honestly as is possible, irrespective of which Party,
    because in the final analysis, the American public wants to make a
    judgement based on as much information as they can get as quickly as
    they can get it.\' U.S. House of Representatives, Committee on
    Appropriations, Subcommittee on the Treasury, Postal Service and
    General Government Appropriations, FY 2001 23.

[^714]: Cain B & Lochner T (1999) \'Equity and Efficacy in the
    Enforcement of Campaign Finance Laws\': *Texas Law Review*, **77**
    1935.

[^715]: Other factors responsible for worsening relations between
    Congress and the FEC were discussed in earlier chapters. Early
    criticisms of regulatory behaviour included: over zealous litigation
    against \'widows and orphans,\' aggressive field investigators and
    acting on unsubstantiated allegations.

[^716]: Jackson B (1990) *Broken Promise, Why the FEC Failed*: Twentieth
    Century Fund Paper 66.

[^717]: In 1988 the Commission issued 12,786 RFAIs. By 1996 this had
    increased to 21,500. Additionally, in 1988 the average number of
    itemised transactions coded per FTE was 73,699. By 1996, this had
    increased to 119,386. Thomas S & Bowman J (2000) 581. Similarly, the
    PWC (1999) audit alluded to FEC productivity gains, noting that 1.9m
    transactions had been entered and coded during 1996, compared to
    0.8m during 1990-91. The report also suggested that whilst the
    enforcement caseload might justify budget increases above \'normal
    inflation-adjusted levels, this should be conditioned on the
    agency\'s progress in implementing opportunities to increase
    productivity.\' PWC (1999) E-S 10.

[^718]: Staffing levels are measured and referred to as full-time
    equivalents or FTE\'s.

[^719]: Thomas S & Bowman J (2000) 581.

[^720]: Thomas S & Bowman J (2000) 580.

[^721]: FY 2000 budget \$38,275,065 (personnel costs \$25,530,642).

    FY 2001 budget \$40,410,900 (personnel costs \$27,757,000). FEC
    *Annual Report* (2000) 32.

[^722]: Thomas S & Bowman (2000) 582.

[^723]: FEC *Annual Report* (2000) 33.

[^724]: In an answer to questions submitted by Congress during FY 1997
    appropriation hearings, the agency explained why they had not
    recruited more lawyers for the OGC. Previously, representatives of
    the agency had attended law schools as part of the annual autumn
    recruiting programme. However, due to budget constraints\' this was
    cancelled in 1995 and 1996. Additionally, recruitment was also
    constrained by a hiring freeze from November 1995 through to October
    1996. These factors, coupled with natural attrition, meant that the
    OGC became seriously understaffed. U.S. House of Representatives,
    Committee on Appropriations, Subcommittee on the Treasury, Postal
    Service, and General Government Appropriations, FY 1998 54.

[^725]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on Treasury, Postal Service, and General Government
    Appropriations, FY 1999, 36. Brooks Jackson criticised the lack of
    investigators in the OGC. He opined, \'The FEC lacks the most basic
    tools for conducting real investigations-investigators. The tragedy
    is that the Commission once had a staff of such investigators,
    including former New York and Washington police officers, a former
    army criminal investigator, and a former member of the Central
    Intelligence Agency. But it got rid of them.\' Jackson B (1990) 7-8.
    Prominent fund-raiser and former Congressmen, Tony Coelho (D-CA),
    commented \'there\'s basically been an attempt on the part of some
    people to try to make the FEC non-effective by withholding money.
    And they succeeded to a great extent.\' Shenk continued \'the staff
    is bone thin: the FEC has only two investigators to cover its
    thousands of cases; its lawyers are saddled with as many as a dozen
    cases each.\' Shenk J (1997) \'Why the Federal Election Commission
    is a lap dog for the political class\': *U.S. News & World Report*,
    January 20, 31. Whilst Shenk accurately referred to the \'bone
    thin\' staffing levels and overworked lawyers, the FEC investigates
    thousands of respondents per year, not thousands of cases.

[^726]: The Senate Committee on Governmental Affairs was authorised to
    investigate the allegations surrounding the 1996 Federal elections
    by Senate Resolution 39, passed in March 11, 1997.

[^727]: Thomas S & Bowman J (2000) 583.

[^728]: In 1990, political disbursements stood at \$1.115 billion; by
    1992 that figure had nearly doubled, reaching \$2.015 billion. A
    similar trend occurred between the 1994 and 1996 Federal elections.
    In 1994, \$1.708 billion was disbursed. This increased by over \$1
    billion to \$2.738 by 1996. Thomas S & Bowman J (2000) 580. The FEC
    attributed the sharp rise in campaign activity in 1992 to the
    following: a competitive three-way Presidential election, the impact
    of the 1990 census and redistricting, the impact of a large number
    of retirements and an anti-incumbent feeling amongst the electorate.
    Letter to Senator Wendell Ford (D-KY) Chairman of the Senate
    Committee on Rules and Administration from FEC Chairman Scott Thomas
    May 14 (1993) 8.

[^729]: Cowett A (1989) 49.

[^730]: Interview with the author, Washington D.C. 17.10.01.

[^731]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 2001 1.

[^732]: Interview with the author, Washington D.C. 16.10.01.

[^733]: Interview with the author, Washington D.C. 22.10.01.

[^734]: When interviewed, Fred Wertheimer said \'all oversight is
    intimidation acts and constraints.\' Interview with the author,
    Washington D.C. 25.10.01.

[^735]: La Forge A (1996) \'The Toothless Tiger-Structural, Political
    and Legal Barriers to Effective FEC Enforcement: An Overview and
    Recommendations\': *The Administrative Law Review*, **10** 377.

[^736]: Democracy 21 (2002) 72.

[^737]: Jackson B (1990) 69.

[^738]: Democracy 21 (2002) 73.

[^739]: Cowett A (1989) 38.

[^740]: O\'Connor C (1986) \'Who\'s Afraid of the F.E.C.?\': *The
    Washington Monthly*, March 1986 22.

[^741]: Gross K (1991) \'The Enforcement of Campaign Finance Rules: A
    System in Search of Reform\': *Yale Law & Policy Review*, **9** 290.

[^742]: O\'Connor C (1986) 26.

[^743]: Gross K (1991) 290. Thompson was convicted of bribery in 1980
    and sentenced to three years in Federal Prison. He served two years
    of that sentence and became a Washington lobbyist before his death
    in 1989. [www.princetin.edu](http://www.princetin.edu/)

[^744]: O\'Connor (1986) 26. La Forge described random audit performance
    as \'poor\' and Robert Mutch described it as \'slow and flawed.\' La
    Forge A (1996) 377.

[^745]: La Forge A (1996) 377.

[^746]: Kemper V (1995) \'Take the Money and Run\': *Common Cause
    Magazine*, 1995 22.

[^747]: When interviewed in 1979, Commissioner Neil Staebler described
    how the random audit programme functioned. He said \'all campaigns
    for a given seat are handled together-incumbents, as well as major
    and minor party challengers. Results are announced simultaneously,
    unless some serious violation is encountered that holds one contest
    up for a longer period of time. There is a modest threshold for the
    number of dollars spent, so some of the tiny campaigns are exempt
    from auditing.\' Whilst Commissioner Staebler opined that generally
    Congress \'has never seriously attempted to change an agency
    decision.\' Saying that \'most Congressmen, an overwhelming number,
    took us as a necessary evil-or even a desirable influence and did
    not attempt to tamper,\' he did say that the random audit programme
    \'had been subject to considerable attack by Congress.\' Muller N
    (1979) \'Reflections on the Election Commission\' \'An Interview
    with Neil O. Staebler\': *Regulation*, March/April 34.

[^748]: Interview with the author, Washington D.C. 17.10.01.

[^749]: Interview with the author, Washington D.C. 16.10.01.

[^750]: Interview with the author, Washington D.C. 18.10.01.

[^751]: Jackson B (1990) 31.

[^752]: The FECA 1979 reduced the number of disclosures mandated under
    the 1974 Act. The 1979 amendments are described in chapter 1.

[^753]: Jackson B (1990) 31.

[^754]: Cowett A (1989) 51. Senator Ford went on to become Chairman of
    the Senate Rules committee.

[^755]: Cowett A (1989) 50-51.

[^756]: Stone P (1995) \'Whose Campaign Reform?\': *National Journal*,
    6.3.95 1365. In 1994 Livingston had won a retroactive cut in the FEC
    budget in a House floor vote but this was later blocked by the
    Senate. Curran T (1995) FEC: \'Self Licking Ice-Cream Cone\': *Roll
    Call*, **41** (3) 1 & 13.

[^757]: FEC Budget Crisis Backgrounder, letter appended to FEC press
    release December 30 1994.

[^758]: Kemper V (1995) 23.

[^759]: Kemper V (1995) 22.

[^760]: These are technically referred to as category \'b\' earmarks and
    only assume legally binding status when inserted into the text of an
    appropriation bill that is enacted by Congress. However, earmarks
    are usually only inserted into the relevant committee report on the
    appropriation bill. In this latter case, the earmark is not legally
    binding, it merely becomes persuasive.
    [www.house.gov/rules](http://www.house.gov/rules) 31.8.02.

[^761]: The term \'modernisation\' is often used in a disparaging way by
    FEC critics who like to characterise it as a \'creaking
    bureaucracy\' and therefore in need of modernisation.

[^762]: Detailed Budget History, FEC Congressional Affairs, updated July
    2001.

[^763]: Interview with the author, Washington D.C. 18.10.01.

[^764]: Democracy 21 (2002) 74.

[^765]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 1999 2.

[^766]: Interview with the author, Washington D.C. 18.10.01.

[^767]: Keller A (2001) \'FEC, Congress Enjoy \'Calmer\' Relations As
    Agency Streamlines, Adds Programmes\': *Roll Call*, September 10,
    32.

[^768]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service, and General Government
    Appropriations, Fiscal Year 1998, 10.

[^769]: Democracy 21 (2002) 76.

[^770]: Interview with the author, Washington D.C. 24.10.01.

[^771]: Koszczuk J (1998) \'Money Woes Leave FEC Watchdog with more Bark
    than Bite\': *Congressional Quarterly Weekly Report*, **56** (9)
    469-71.

[^772]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, \'Management and Operations of the Federal Election
    Commission,\' June 20, 1995.

[^773]: Curran T (1995) 1 & 13. As the agency is proscribed from
    randomly auditing committees, it may only audit for cause. A
    committee may only be audited if its reports break certain internal
    FEC thresholds relating to errors and inaccuracies, thereby
    triggering an \'audit for cause.\' However, like all substantive
    action carried out by the FEC, an audit for cause must be authorized
    by an affirmative mixed majority vote by Commissioners. The trend in
    recent years has been for the FEC to relax the audit for cause
    thresholds\' making it less likely committees will be scrutinised.
    Consequently the political novice is far more likely to be audited
    than an experienced actor is because the latter often employs a
    professional to manage his/her campaign accounts and file the
    requisite disclosure reports.

[^774]: Democracy 21 (2002) 79.

[^775]: Letter written by Representative Bob Livingston (R-LA),
    published as, \'Ice Cream Tyranny\': *Roll Call*, **41** (6) 17.7.96

[^776]: PWC (1999) Financial and Cost Management 3.3.8.2. Category B
    earmarks are the financial apportionments directed by the OMB.

[^777]: For example in May 1993, Senator Wendell Ford (D-KY), Chairman
    of the Committee on Rules and Administration, asked about the
    specific standards contained in the EPS. In a written answer the
    Commission informed him that \'the effectiveness of such a system is
    dependent, in part, on being able to keep the specific criteria and
    details confidential.\' He was, however, given the broad criteria
    already set out and discussed in chapter two. Letter by FEC Chairman
    Scott Thomas to Wendell H. Ford (D-KY) May 14, 1993.

[^778]: Interview with the author, Washington D.C. 18.10.01. Trevor
    Potter commented that the confidentiality of EPS criteria was \'to
    keep them guessing. Because if we actually told them we were
    enforcing X and Y, they\'d know that we were not enforcing A, B, C,
    and D.\' Author: \'So it\'s to stop the regulated community from
    rationalising the process, isn\'t it?\' Trevor Potter: \'Yes, it\'s
    intended to hide what the Commission is doing, so the community
    won\'t know where the resources are going.\' Interview with the
    author, Washington D.C. 24.10.01.

[^779]: [www.house.gov/rules](http://www.house.gov/rules) 5.9.02.

[^780]: Comment (1995) \'Potter\'s Clay\': *Roll Call*, 2.10.95.

[^781]: U.S. Senate, Appropriations Committee, Subcommittee on Treasury,
    Postal Service and General Government Appropriations FY 1996 949.

[^782]: Democracy 21 (2002) 79.

[^783]: Democracy 21 (2002) 79.

[^784]: Keller A (2001) 32.

[^785]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on Treasury, Postal Service and General Government
    Appropriations FY 1997 58-59.

[^786]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on Treasury, Postal Service and General Government
    Appropriations FY 1997 59.

[^787]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on Treasury, Postal Service and General Government
    Appropriations FY 1997 66.

[^788]: Interview with the author, Washington D.C. 18.10.01.

[^789]: Curran T (1995) 13.

[^790]: Kemper V (1995) 23.

[^791]: Democracy 21 (2002) 79.

[^792]: Curran T (1995) 13.

[^793]: FEC letter to Mr. Kevin Bacon, Project Partner Management
    Consulting Services PWC, January 21 1999, 1.

[^794]: [www.fec.gov](http://www.fec.gov/) Press Release 29.1.99.

[^795]: PWC (1999) E-S 2.

[^796]: The report also opined that \'since 1996, the FEC has made
    substantial progress in enhancing and upgrading its computing
    capabilities, PWC E-S 7.

[^797]: The FEC remains compartmentalised with little cross
    fertilisation of knowledge and experience between functional units.

[^798]: PWC (1999) E-S 3.

[^799]: Keller A (2001) 33.

[^800]: Democracy 21 (2002) 80.

[^801]: PWC (1999) 3.3.7.

[^802]: Democracy 21 (2002) 80.

[^803]: PWC (1999) 5.0 Exhibit 5-1.

[^804]: The PWC (1999) audit did recommend the introduction of the
    administrative fines system but this was not a significant new
    power, though a useful one. The fines have been likened to the
    political equivalent of a \'parking ticket.\' Smith B & Hoerstring S
    (2001) \'A Toothless Anaconda: Innovation, Impotence, and
    Overenforcement (*Sic*) at the Federal Election Commission\':
    *Election Law Journal*, **1** (2) 147.

[^805]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 2001 19.

[^806]: Each Commissioner has one executive assistant unless they are
    serving as FEC Chairman or Vice-Chairman, in which case they are
    supported by one additional EA.

[^807]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 2001 19.

[^808]: Gruenwald J (1998) \'Action on Treasury-Postal Bill Is Suddenly
    Halted After Dispute Over Term Limits at FEC\': *Congressional
    Quarterly Weekly Report*, 1.8.98, 2111.

[^809]: Gruenwald J (1998) 5.9.98 2345.

[^810]: Gruenwald J (1998) 1.8.98 2111.

[^811]: Aizenman N (1998) \'Noble\'s Cause\': *The New Republic*,
    20.7.98 & 27.7.98, 13.

[^812]: Gruenwald J (1998) 1.8.98 2111. Aizenman described Larry Noble
    as having a distinctly liberal pedigree. She referred to him as a
    native of Queens N.Y. who had gone to college in the 60\'s and 70\'s
    and had even worked for Ralph Nader. Tina VanBrakle said that Larry
    Noble had been described by Bob Livingston as \'the Ralph Nader
    Regulator.\' Interview with the author, Washington D.C. 18.10.01.
    Yet Larry Noble has also been equally unpopular with Democrats. He
    commented, \'the joke around here is that there have always been
    three votes to remove me, but they haven\'t been the same three
    votes.\' Aizenman N (1998) 20.7.98 & 27.7.98 13. On July 31 1998
    Noble commented \'my office has acted in a totally non-partisan way.
    It is important to keep in mind that all I do is make
    recommendations.\' Referring to the McConnell amendment he said
    \'the message it sends to the General Counsel and the Staff Director
    is, if you anger either side, you\'re going to be in trouble.\'
    Gruenwald J (1998) 1.7.98, 2111.

    Additionally, one might reiterate the findings of the PWC (1999)
    audit alluded to earlier, which found the FEC had exercised its
    enforcement responsibilities in an impartial manner.

[^813]: Interview with the author, Washington D.C. 25.10.01.

[^814]: Rubenstein B (1998) \'FEC General Counsel\'s Job is threatened
    by Congress\': *Corporate Legal Times*, **8** (84) 4.

[^815]: Gruenwald J (1998) 1.8.02, 2111.

[^816]: Seelye K (1998) \'G.O.P. Drops Effort to Remove Election
    Counsel\': *New York Times*, 4.8.98, 20.

[^817]: An editorial in the *Corporate Legal Times* opined that
    \'Congressional insiders say the issue will keep coming back as long
    as Noble continues investigating the majority party.\' Comment
    (1998) \'FEC General Counsel Keeps His Job For Another Year\':
    *Corporate Legal Times*, **8** (85) 14.

[^818]: Interview with the author, Washington D.C. 18.10.01.

[^819]: Joan Claybrook, the President of Public Citizen opined that
    \'the public believes it (FEC) is an enforcement agency. Still, some
    Republicans want to starve it to death and make it a eunuch.\' Stone
    P (1995) 1365.

[^820]: The FEC responded to the fiscal year 1995 budget rescission by
    commenting, \'the House of Representatives is targeting the FEC for
    budget reductions that appear punitive rather than fiscal in nature.
    In fact, the cuts appear caused precisely by the fact that the FEC
    has become more effective and efficient in meeting its
    responsibilities, not the reverse.\'

[^821]: Karmin C (1995) FEC penalties set record as Gephardt committee
    is fined\': *The Hill*, 12.7.95.

[^822]: Karmin C (1995) *The Hill*, 12.7.95.

[^823]: Karmin C (1995) *The Hill*, 12.7.95.

[^824]: [www.fec.gov](http://www.fec.gov/) 25.9.02.

[^825]: Colloquay (1994) \'Federal Election Commission Panel Discussion:
    Problems and Possibilities\': *The* *Administrative Law* *Journal*,
    **8** 229-230.

[^826]: Broder D (1995) *Washington Post*, May 21. Kemper V (1995) 21.
    Stone P (1995) 1365. Comment (1995*) \'*Licking the FEC\': *Roll
    Call*, **41** (4) Monday July 10, 4. Comment (1995) \'The Electoral
    Watchdog\': *Christian Science Monitor*, Thursday June 1, 20.

[^827]: Kemper V (1995) 22.

[^828]: Democracy 21 (2002) 74.

[^829]: Colloquay (1994) 230.

[^830]: Once promulgated, Livingston continued to oppose the personal
    use regulations. For example, in 1997 he criticised the FEC for its
    \'picayunish efforts to micromanage the lives of every candidate
    and/or incumbent.\' U.S. House of Representatives, Committee on
    Appropriations, Subcommittee on the Treasury, Postal Service, and
    General Government Appropriations, FY 1998 3.

[^831]: [www.fec.gov/pages/ch3.htm](http://www.fec.gov/pages/ch3.htm)
    26.9.02.

[^832]: Shenk J (1997) 40.

[^833]: Democracy 21 (2002) 74.

[^834]: Stone P (1995) 1365.

[^835]: Ortiz D (1994) \'Symposium on the Federal Election Commission\':
    *Journal of Law & Politics*, **10** (3) 380.

[^836]: Kemper V (1995) 23.

[^837]: It has been common for politicians to develop a long-standing
    attitude towards the Commission based on one or two personal
    experiences. For example, some of the antagonism Livingston felt
    towards the FEC arose from a complaint he filed on 28 December 1988.
    Livingston\'s complaint was directed at his Democratic Party
    opponent, the Mustakas for Congress Committee. Mustakas, who became
    the subject of MUR 2705, had failed to file a 12-day pre-primary
    report. Although Mustakas had received \$102,880 into his campaign
    coffers, most of this sum originated from a secured loan made by his
    parents. The Commission found \'reason to believe\' Mustakas had
    violated the FECA and authorized an investigation. After Mustakas
    failed to respond to FEC subpoenas, the Commission filed suit in the
    U.S. District Court. However, the MUR was eventually dismissed under
    the EPS because it had become stale and there was little prospect of
    substantive action as Mustakas had left the country and moved to
    Scotland after the election. FEC Release, MUR 2705 Mustakas for
    Congress.

[^838]: Broder S (1995) *Washington Post*, May 21.

[^839]: A letter written by Bob Livingston was published in *Roll Call*,
    in which he denied that personal-use regulations had anything to do
    with his \'focus\' on the agency. Instead, he criticised the
    Commission for \'gross inefficiency and bureaucratic hubris.\'
    Letters Section, *Roll Call*, July 17 1995.

[^840]: Ortiz D (1994) 380.

[^841]: U.S. House of Representatives, Committee on Administration,
    Subcommittee on Elections, FEC Authorization FY 1995 3.

[^842]: Ortiz D (1994) 378.

[^843]: Interview with the author, Washington D.C. After Congressman
    Livingston continued to criticise the personal-use regulations
    during the FY 1996 appropriations hearing, Commissioner McDonald
    fiercely defended the FEC. He opined that all rules have to gain the
    support of a majority of Commissioners and that Congress had the
    authority to take action on and oppose FEC regulations. Commissioner
    McDonald commented: \'I want to point out something else.
    Regulations are not new laws. One of the things that the Commission
    has always had trouble with, and we have heard it from the Congress
    for years, is we don\'t really understand what it is you want us to
    do. So it is really difficult. The question is, do you want us to
    put out regulations or not? As I have indicated, I have asked that
    we put a freeze on them, and take care of the ones we have. But, as
    a practical matter, you can\'t have it both ways. Either you want
    the law clarified or you don\'t. I don\'t care if we don\'t. I am
    just saying that for years people have said the law is complex, we
    don\'t understand it, can\'t you do something to make the law
    clearer?\' U.S. House of Representatives, Committee on
    Appropriations, Subcommittee on the Treasury, Postal Service and
    General Government Appropriations FY 1996 332-333. One might argue
    that whilst opponents of the personal-use rules were well aware that
    they could prevent the implementation of rules they opposed, to do
    so might prove politically costly. One might also note that members
    rarely referred directly to the personal-use regulations in
    testimony and would have preferred it if the FEC had dealt with the
    issue through self-censorship, voluntarily dropping the proposal.

[^844]: Broder D (1995) *Washington Post*, May 21. Kemper V (1995) 21.

[^845]: Broder D (1995) *Washington Post*, May 21.

[^846]: Kemper V (1995) 23.

[^847]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service, and General Government
    Appropriations FY 1998 36-37.

[^848]: U.S. House of Representatives, Committee on Appropriations,
    Subcommittee on the Treasury, Postal Service and General Government
    Appropriations, FY 1998 37.

[^849]: Interview with the author, Washington D.C. 25.10.01.

[^850]: \'FEC Budget Crisis Backgrounder\' appended to FEC Press Release
    30.12.94.

[^851]: Keller A (2001) 32.

[^852]: Interview with the author, Washington D.C. 17.10.01.

[^853]: Interview with the author, Washington D.C. 18.10.01.

[^854]: Interview with the author, Washington D.C. 18.10.01.

[^855]: Interview with the author, Washington D.C. 24.10.01.

[^856]: Interview with the author, Washington D.C. 22.10.01.

[^857]: Keller A (2001) 33.

[^858]: Stone P (1995) 1365.

[^859]: Comment (1995) \'The Electoral Watchdog\': *Christian Science
    Monitor*, Thursday June 1, 20.

[^860]: Letter written by FEC Chairman Scott Thomas, May 14 (1993) 1.
    Held by author.

[^861]: FECA Title 2 437d. (d).

[^862]: Interview with the author, Washington D.C. 18.10.01.

[^863]: [www.opensecrets.org/pubs/law-justice](http://www.opensecrets.org/pubs/law-justice)
    3.3.01. Colloquay (1994) 237.

[^864]: Interview with the author, Washington D.C. 22.10.01.

[^865]: Interview with the author, Washington D.C. 18.10.01.

[^866]: Letter held by the author, 1.11.93.

[^867]: Letter held by the author, 10.7.95.

[^868]: Mitchell A (1997) \'Clinton Requests More Money for Election
    Panel\': *New York Times*, 8.4.97. The letter also stated that
    \'over the past two years, Congress has appropriated for the FEC
    substantially less than I requested. Today, commissioners of both
    parties have testified that the FEC is overworked, under-funded, and
    unable to address the many issues raised in recent elections.\'
    Press Release issued by White House Briefing Room, 7.4.97.

[^869]: Comment (1997) \'Campaign Finance\': *USA Today*, 4.8.97.
    Executive Office of the President, OMB, Statement of Administration
    Policy, 17.9.97.

[^870]: For example, House Elections Subcommittee Chairman Al Swift
    (D-WA) wrote to Leon Panetta asking the OMB to support the
    Commission\'s FY 1995 budget request of \$31,793,000. Letter held by
    the author, 1.2.94. FEC Chairman Scott Thomas wrote the formal
    appeal that year and commented that the passback determination of
    \$27,106,000 \'would seriously undermine the Commission\'s ability
    to administer and enforce the federal campaign finance laws.\'
    Despite these representations, Barnes noted how the \'OMB didn\'t
    budge.\' Barnes J (1994) \'Wobbly Watchdog\': *National Journal*,
    2.4.97, 778. John Surina, FEC Staff Director wrote to Isabel
    Sawhill, the OMB PAD on April 30 1993. There, he set out the
    increased workload the agency faced, the inadequacy of the passback
    and the fact that the OMB had failed to respond to previous written
    appeals and \'telephonic contacts.\' Letter held by the author,
    30.4.93.

[^871]: Interview with the author, Washington D.C. 22.10.01.

[^872]: Interview with the author, Washington D.C. 17.10.01.

[^873]: Interview with the author, Washington D.C. 17.10.01.

[^874]: [www.campaignfinancesite.org/history/reform](http://www.campaignfinancesite.org/history/reform)
    4.3.01.

[^875]: Interview with the author, Washington D.C. 24.10.01.

[^876]: Interview with the author, Washington D.C. 16.10.01.

[^877]: Cain B & Lochner T (1999) 1919.

[^878]: PWC (1999) E-S 2.

[^879]: In the United States District Court For the District of
    Columbia: *Senator Mitch McConnell et al v Federal Election
    Commission et al*. Joint Government and Intervenors' (*Sic*)
    Introduction I-1.

[^880]: FECA 1971 as amended 1974, 1976 and 1979.

[^881]: [www.frwebgate.access.gpo.gov](http://www.frwebgate.access.gpo.gov/)
    BCRA (2002) 116 Stat.89 Subsection (3) (A) (I) (II)

[^882]: [www.frwebgate.access.gpo.gov](http://www.frwebgate.access.gpo.gov/)
    BCRA (2002) 116 Stat.89 Subsection (3) (A) (III)

[^883]: [www.frwebgate.access.gpo.gov](http://www.frwebgate.access.gpo.gov/)
    BCRA (2002) 116 Stat.89 Subsection (3) (A) (ii)

[^884]: [www.cfinst.org](http://www.cfinst.org/) 16.2.03