Is Barack Obama -- the former constitutional law professor and voting rights activist -- allergic to democracy reform? Perhaps congressional Republicans have thrown up such roadblocks that the White House has decided it’s not worthwhile to fight for the key federal agencies that defend democracy.
Whether the fault lies with the White House or with GOP obstructionists -- or both -- the results are the same: federal institutions created to make campaign finances more transparent and ensure that election technology is evolving are paralyzed by empty leadership positions, while the executive branch’s efforts to push ahead on its own have yielded little.
“I’ve felt like Diogenes looking for an intelligent Republican and never found one—I am hoping that will change,” said Craig Holman, Public Citizen’s Capitol Hill lobbyist, who puts the blame on the GOP for blocking Obama’s appointments. “But I’ve also been very critical of Obama for not taking on these fights. I’ve been asking Obama since 2009 to replace these commissioners and take on [GOP Senate leader] Mitch McConnell.”
Let’s go through key parts of the federal landscape that are supposed to ensure a fairer and better democratic process, and identify what’s stuck in the political mud.
1. Federal Election Commission
The six-member FEC, which regulates how money is raised in federal campaigns, has five vacancies. Until those seats are filled, previously appointed commissioners keep their seats. That’s the case now, with three Democrats and three Republicans, which has left the FEC deadlocked on every big issue in recent years—including rules that could have reeled in some of 2012’s biggest law-evading partisans.
Trevor Potter, a former FEC commissioner and chairman, who is more recently known as Stephen Colbert’s campaign finance attorney, recently wrote aWashington Post op-ed saying that the moribund FEC is more to blame for 2012’s top campaign finance abuses than the Supreme Court’s 2010 Citizens United ruling. He doesn’t believe the White House has to follow past protocol and appoint three Democrats and three Republicans chosen by each party’s leaders. But even in 2009, when the White House floated the name of one nominee, which went nowhere, campaign reformers felt that potential commissioner would support more deregulation instead of more transparency.
2. Election Admistration Commission
This federal agency was created after Florida’s voting machine meltdown in 2000 that made everyone in America aware of hanging chads—the cut-out parts of a paper ballot that clogged Florida’s vote counters. It never had a big budget and was criticized in its early years by election officials for being too slow to certify new voting technology -- because it kept finding flaws. But the four-member EAC now has zero commssioners.
Some secretaries of states and newly elected Republicans want the EAC phased out and dismantled. But longtime civil rights advocates say the agency is needed more than ever, especially after the 2012 election when thousands of people waited in line for hours to vote and a number of voting machine problems were reported coast to coast.
“Its goals and the purposes for which it was constituted are definitely still needed,” said Barbara Arnwine, of the Lawyers' Committee for Civil Rights and an EAC advisory board member. “However, the institution we have right now is not what we need.”
3. Executive Order on Federal Contractor Disclosure
Republicans obstructionists may give the White House an excuse for not pushing for its appointments to controversial commissions, but that’s not true with executive orders. In early 2012, White House staff met with democracy advocates including Public Citizen’s Holman to develop an executive order that would require any federal contractor to report any political contributions.
Initially, some of Washington’s biggest business lobbyists balked and pushed back. But by last December, as the anniversary of the Citizens United decision loomed, there was some talk that the White House would soon act, especially as the presidential campaign season was gearing up. But nothing happened, disappointing disclosure advocates.
4. Saying No To Presidential Public Financing
In 2008, then-candidate Barack Obama became the first nominee of a major political party to reject using public financing to pay for his campaign after his party’s national nominating convention. The thinking then was that the Obama campaign could raise more money than it would get from taxpayers, and wouldn’t have to abide by spending limits in exchange for the public funds.
That same scenario was repeated in 2012, as the president’s supporters created the same kinds of big-money super PACs that the GOP pioneered in its presidential primaries. These decisions reflect a truism in politics: there’s little desire to change the rules of a system that a candidate mastered and elected him into office. However, it underscores why the administration does not see democracy issues as a priority.
5. Securities and Exchange Commission
The SEC regulates publically held corporations. In 2011, a handful of law professors petitioned the SEC to change a rule allowing a public corporation to hide its political spending from shareholders. The rule-making petition would require that spending be disclosed and to date has prompted more public comments (300,000) than any other draft rule in the agency’s history.
The SEC did not act on the petition before the 2012 election, which saw numerous pro-business trade associations, such as the U.S. Chamber of Commerce, spending millions on political ads without disclosing donors. But according to Craig Holman, agency staffers this week told him that the rule change is still on its 2013 agenda.
“In two weeks, we will be holding a press confernce and making some demands on these fights,” Holman said, referring to everything from the agency appointments to disclosure rules. “I used to work with Republicans—people like senators John McCain and Olympia Snow. But recently they’ve all just marched in lockstep with [Senate Minority Leader] Mitch McConnell and [House Speaker] John Boehner.”
That discouraging reality means it is up to the White House, or independent agencies like the SEC, to move ahead on their own. You would think the constitutional lawyer and voting rights activist in the Oval Office would not need convincing in these fights.