There is a serious rule of law problem in how rarely campaign finance laws are enforced at the federal level by the Federal Election Commission, the agency set up to regulate money in politics.
Philosopher Jeremy Waldron taught me about the rule of law at Columbia Law School. As a 1L student, I could see no point in this “waste” of my precious time. But the more I see how lawlessness works in the real world, the more grateful I am to Columbia for exploring this concept in such depth.
So what is the “rule of law” anyway? This is a matter of rich debate. But at the very least, the rule of law encompasses the idea that as President Theodore Roosevelt put it, no one is above or below the law. A U.S. President or his administration can be hauled into court for civil or criminal offenses; and any pauper still has the right to full due process.
Another key concept invoked by the phrase the rule of law is that like cases will be treated alike. This is why respect for precedent (or stare decisis) is so important to our legal system—it goes to the core of basic fairness and justice.
And finally the rule of law means there needs to be fair notice of what the law is so that the public can conform its behavior to those rules, and so that the government cannot make up a new crime retroactively or arbitrarily.
At the federal level, campaign finance laws are enforced by two executive agencies: the Federal Election Commission (FEC) and the Department of Justice (DOJ). The FEC has jurisdiction to enforce all federal campaign finance laws including leveling civil penalties. The DOJ’s jurisdiction is more limited because it must prove beyond a reasonable doubt that the violation was done knowingly.
But as the present FEC has found itself deadlocked into inaction, including inaction over enforcing existing federal campaign finance laws, the DOJ has taken on a bigger role as the money in politics enforcer of last resort. This is not ideal since a functioning FEC would have a range of administrative civil options, while DOJ has the heavier hammer of criminal penalties like jail time.
As the American Constitution Society explains, the trouble at the FEC is partially structural. The FEC is a six-person commission with three Democratic appointees and three Republican appointees. The commission needs four members to agree to take action and often there is a three-three tie, which means the FEC frequently won’t take action, even if that action is telling politicians running for federal office to abide by the U.S. Code. This is how the agency has earned the unfortunate nickname, the “Failure to Enforce Commission.”
Why is this state of affairs at the FEC creating a lack of respect for the rule of law? First, the FEC by definition has jurisdiction over not only those who aspire to high federal offices, but also the campaigns of incumbent members of Congress and sitting Presidents who run for reelection. These are powerful people who want to keep or advance their positions. The rule of law demands that these individuals not get a pass just because they have a title of Senator, Representative or President.
Again no one is above the law when the rule of law is respected. But without strong enforcement, it is precisely elected officials (and those who desire to be elected) who get to thumb their noses at the law.
Second, respect for precedent is also lacking at the FEC. Not so long ago, FEC actually enforced its own rules. Break these same rules today and there is unlikely to be any action from the current FEC. Arguably, the FEC is not treating like cases alike.
Finally, the FEC is not doing its core function of clarifying the rules and giving the public notice of what is or is not out of bounds. They still don’t have a Citizens United disclosure rule even though that case was five years ago. And they don’t have updates to rules based on other Supreme Court precedent either.
Which leaves us with the DOJ, which has the more blunt tool of ramping up criminal prosecution, but they use this tool in more narrow circumstances. This incentivizes the powerful to run the odds that the FEC won’t lift a finger to enforce the rules, and the DOJ will only go after the most egregious or bone-headed violations. This is the opposite of the rule of law when the already mighty can feel free to ignore the laws on the books.
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The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.