Federal Election Commission

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FEDERAL ELECTION COMMISSION

The Federal Election Commission (FEC) is an independent agency that was established by the 1974 amendments to the Federal Election Campaign Act of 1971 (88 Stat. § 1280 [2U.S.C.A. § 431 et seq.]). The 1974 amendments—passed after President richard m. nixon resigned in the wake of the watergate scandals, which included charges of abuse of power and obstruction of justice involving campaign contributions—set out financial rules governing campaigns for federal office. The FEC was designed to act both as a clearinghouse for information on federal campaign laws and as the enforcer of campaign laws.

The FEC is composed of six commissioners who are appointed by the president with the advice and consent of the Senate. The act also provides for three statutory officers—the staff director, the general counsel, and the inspector general—who are appointed by the commission.

The FEC's main responsibility is to enforce federal campaign financing laws. Thus, its scope is limited to overseeing the financing of congressional, senatorial, and presidential election campaigns. The Federal Election Campaign Act, as amended in 1974, was intended to limit severely the amount of financial contributions made by wealthy individuals, and to place limits on the amounts that candidates could spend on their campaigns. In addition, the law required public disclosure of all campaign contributions and established public financing for presidential campaigns.

Since the law was enacted in 1971, the FEC has been faced with lawsuits challenging the constitutionality of its campaign-financing provisions. The U.S. Supreme Court, in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659(1976), complicated the work of the FEC when it ruled that the 1974 act's limitation on campaign expenditures was unconstitutional. The Court did uphold the limit of $1,000 for individual contributions, but ruled that candidates could spend as much as they wished of their personal fortunes on their campaigns.

Because of loopholes in the law and the Buckley decision, there has been a tremendous growth in political action committees (PACs) as vehicles for major campaign spending. PACs are special organizations formed by labor, industry, the professions, and other interest groups that are not identified with individual candidates. PACs are not bound by the individual-contribution restriction; therefore, their political influence has risen with their large contributions.

The FEC administers and enforces the law with respect to limits and prohibitions on contributions and expenditures made to influence federal elections. In addition, it enforces the requirement that candidates must disclose where campaign money comes from and how it is spent. This requirement has created a complex set of rules that the FEC must administer. The FEC places reports on the public record within 48 hours after they have been received, and computerizes the data contained in the reports.

If the FEC discovers irregularities or violations of the law, either through its own internal audits or through a complaint filed by the public, it has the authority to seek civil enforcement of the law. The FEC first seeks compliance through conciliation, but it may file a lawsuit when conciliation fails.

The FEC administers the public funding of presidential elections. It certifies federal payments to primary candidates, general election nominees, and national nominating conventions. It also audits recipients of federal funds and may require repayment to the U.S. Treasury if a candidate makes nonqualified campaign expenditures.

Because of the complexity of the disclosure requirements and the concern that these requirements discourage some individuals from running for federal office, the FEC provides information through a toll-free telephone line; a web site, (www.fec.gov) publications; seminars; regulations, which clarify the law; and advisory opinions, which interpret the law in specific, factual situations.

The legitimacy of the Federal Election Commission to enforce campaign finance law and the provisions of the FECA was recently upheld by the Supreme Court in Federal Elections Commission v. Colorado Republican Federal Campaign Committee. 533 U.S. 431, 121 S.Ct. 2351 (2001). In that case, the Federal Election Commission (FEC) sued the Colorado state republican party for violating the spending limits of Federal Election Campaign Act. The Party counterclaimed, asserting constitutional challenge to FECA, arguing that the FEC's attempts to limit independent expenditures in connection with a senatorial campaign violated free speech rights.

By a 5-4 majority, the Court held that FECA limits on parties' coordinated expenditures are not unduly burdensome to parties. The Court also found the expenditure limits comported with First Amendment's free speech and associational guarantees. Finally, the Court found that coordinated expenditure limits should be treated the same as FECA's limits on individuals' and nonparty groups' cash contributions when determining their validity.

This was the most important case the Supreme Court has handed down since Buckley concerning the powers of the FEC to enforce campaign finance laws. Despite the concern of many observers that the high court might strike down the ability of the FEC to regulate campaign contributions, the Court in the Colorado case affirmed the FEC's power. The decision reaffirmed Buckley's contribution/expenditure distinction while simultaneously reinforcing the government's power to control furtive contributions.

This decision has important implications concerning the FEC's ability to enforce the new campaign-finance reform act passed in 2002. Popularly known as McCain-Feingold, after the sponsors of the legislation, the Bipartisan Campaign Reform Act (BCRA) of 2002 (Pub.L. 107-155, Mar. 27, 2002, 116 Stat. 81) imposes new restrictions on the financing of political parties and candidates in the United States. The primary goal of the BCRA is to ban soft money, which is money given by corporations and other large donors for party-building and electioneering communications, and the FEC would have the responsibility to put the BCRA into effect. Senator john mccain, the chief sponsor of BCRA, said of the Colorado case, "Clearly, this decision demonstrates that McCain-Feingold restrictions on campaign contributions are constitutional, and our opponents will have to find some other excuse not to enact laws to restore Americans' confidence in our political system."

While the Court's Colorado decision seems to bode well for the FEC's ability to enforce the BCRA, there are still questions whether the act will be effectively enforced. Since its inception, the FEC has been a lightening rod for criticism from both parties. Campaign finance reform opponents and proponents alike question whether the nature of the FEC will prevent it from successfully implementing the law. Senator McCain has already suggested that the FEC was trying to "emasculate" the law through the efforts of commissioners appointed by President george w. bush, who signed the BCRA legislation reluctantly.

Others have suggested that the problem with FEC goes beyond its ability to enforce existing election laws, and that since it is normally a panel that is split evenly between Republican and democratic party members, it is inherently biased against third parties. But while suggestions have been made to change the nature of the FEC by making it more independent or eliminating it altogether, it remained the nation's primary enforcer of state and federal election laws at the end of the twentieth century. It has entered the twenty-first century by establishing a web site with extensive information, by making campaign data from past elections more easily accessible, and developing a new electronic filing system.