Commentary

Reform the FEC

The Star Chamber Court of England stands as a symbol of arbitrary government. It operated outside the normal processes that guarded the liberty of an English subject even under the monarchy. Eschewing trial by jury, the Star Chamber arbitrarily imposed punishments like imprisonment, fines, the pillory, whipping, branding and mutilation. Parliament closed the infamous institution in 1641 but the memory of its misdeeds should never die.

In 1983, the chairman of the ABA’s Administrative Law Section in congressional testimony likened the Federal Election Commission to the Star Chamber Court. The ensuing 20 years have shown the accuracy of that depiction.

The FEC oversees the regulation of American elections. No task could be more central or potentially more dangerous for a nation dedicated to self-government and the rule of law. If abused, the power of the FEC could be used to punish Americans who seek to participate in politics. Critics of the agency will scoff and say the FEC is a “toothless tiger” that is too gentle on those charged with violating election laws. If only that were true.

Defendants before the FEC have few due process safeguards. When a complaint comes before the FEC, its general counsel makes the case against the alleged lawbreaker who has no right to appear before the commission. The general counsel gives the commission a report that summarizes and criticizes the legal arguments of the accused and answers any questions from the commissioners. This report is not given to the accused even though it may contain new arguments or information. The accused also has no right to see the documents that were the basis of the general counsel’s case. The FEC does not have to reveal the witnesses against a defendant, or allow that defendant to attend witness depositions, much less provide an opportunity for cross-examination.

The FEC has long said that the normal rights accorded Americans should not apply at its agency because if an enforcement action were taken to federal court, the normal rule of law standards would apply. That is strange reasoning indeed. An enforcement agency whose work implicates vital rights should be free to ignore the rule of law during a protracted investigation because a court might later honor the rights of a citizen? This justification for exempting the FEC from the rule of law suggests the agency is arrogantly out of control.

The FEC often takes statements from people under oath as part of enforcing elections laws. It denies a copy of these depositions to the citizens who gave them. Generally the rule of law demands that citizens have a right to review what they have said to the government to check for clarity or to preclude transcription errors. The FEC will not even let citizens take notes about their depositions. Apparently no other agency of the federal government follows such a practice.

The commission also reserved to itself the right to decide who is a named respondent in a complaint. The commission tends to name a wide group of individuals who might be associated with an infringement of the law. Being named a respondent in a FEC action is not a trivial matter. It casts a shadow on a person’s integrity and reputation. It is a terrible price to pay for guilt by association.

How could such disregard for normal legal process exist in our government? The FEC regulates campaign finance, a task that attracts zealots who aim at abolishing “corruption” at all costs. It is hardly surprising that their agency, the FEC, ignores legal niceties in pursuit of alleged bad guys. Why let the bad guys hide behind legal technicalities when the purity of American democracy is at stake? You might as well ask why we have trial by jury when we could simply imprison everyone the police arrest? The rule of law protects us from abuses of power and is needed the most when officials think their cause is cleanliness, if not godliness.

Fortunately, there is hope for FEC reform. On June 11 the agency held hearings to find out about the burdens its procedures have placed on Americans. From there the FEC itself could reform some of its internal procedures to make them accord with normal legal process. If it doesn’t, Congress should move to enforce the idea that no one, not even the FEC, stands outside the rule of law.

John Samples is director of the Center for Representative Government at the Cato Institute.