A Fox in the Electoral Henhouse?

With the appointment of former GOP lawyer Michael Toner to the Federal Election Commission, President Bush did more than simply insult the champions of reform.

| Mon Apr. 15, 2002 2:00 AM EDT

Late last month, with all the fanfare the White House might normally reserve for the reauthorization of funding for the Bureau of Weights and Measures, President Bush signed into law the most sweeping change to federal campaign finance laws in nearly three decades.

There was no Rose Garden signing ceremony, no photo ops for the bill's sponsors, no presidential pens as keepsakes. Instead, Bush released a tepid statement that alternately praised and trashed the bill, which will virtually ban 'soft money' contributions to political parties. Then, the president made a point of flying off on a series of fundraising stops aimed at raising $4 million -- much of it soft money -- for several GOP candidates.

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While insulting, Bush's snubs meant far less than another, even stealthier decision the president made two days later -- the appointment of a top Republican crony to replace one of three GOP commissioners on the Federal Election Commission, the agency charged with overseeing the nation's campaign finance system.

Michael Toner, Bush's new man at the FEC, comes to his new post straight from serving as the Republican National Committee's chief counsel. Before that, he was counsel to Bush's presidential campaign and to the Bush-Cheney transition team. Toner may seem to be an unusually high-powered person to assign to a second-tier bureaucratic post at a notoriously weak agency, but read on.

By design, each of the major parties picks three of the six FEC commissioners. As might be expected, these party loyalists often find themselves deadlocked, preventing the commission from taking action. When the commission does find itself compelled to act, it often take so long to make any decision that years pass before judgments are rendered on campaign violations. That's not to say the commissioners never cooperate. They do -- to protect the major parties from outsiders. Most recently, the commissioners upheld corporate funding for the two-party-sponsored "Commission on Presidential Debates" and turned aside recommendations from their own staff attorneys that the 1996 Clinton and Dole campaigns be jointly punished for serious violations of the law.

In this context, Toner's nomination might be seen as business as usual. But there's one crucial difference. The new campaign finance law will go into effect immediately after the November's elections, meaning the FEC has a lot of work to do in the meantime turning the legislation into practical guidelines and campaign rules.

"That's where the loopholes are born," warns Larry Noble, the former FEC general counsel who is now the executive director of the non-partisan Center for Responsive Politics. By putting Toner on the FEC, and by doing so through a recess appointment that sidestepped the Senate's confirmation process and any associated delays, the White House has ensured that it will have a key ally at the table while the new FEC rules are written. While the counsel for the RNC, Toner used all his legal acumen to argue against similar campaign finance reforms, particularly Alaska's controversial ban on soft money contributions. At the FEC, he will be in a position to use that same acumen to punch holes in the new federal legislation.

Noble, who now heads the Center for Responsive Politics, rattles off a series of seemingly technical issues that the FEC will have to grapple with under the new law, which aims to prevent big money interests from getting around hard money limits on contributions to candidates and parties.

"Take the question of how the agency will define the concept of coordination," Noble begins. "There's a lot of talk about independent activity by outside groups -- when will something be considered independent and allowed, and when will it be considered coordinated, and counted as a contribution to a candidate? In the issue ad area, the agency will have to determine when it is that a candidate is clearly identified in an ad." Under McCain-Feingold, such ads, if they appear close to an election, are supposed to come under stricter regulation -- but only if a candidate is pictured or mentioned in them.

"Keep in mind that the soft money loophole was created by the FEC through advisory opinions, back in 1979," Noble says. "Will it find other ways to make these regulations as weak as before? That's my fear."

In Noble's view, Toner's appointment is the Bush Administration's way of telling its conservative allies that they will have a powerful friend on the commission looking after their concerns as the law is implemented. Toner denies that is his intention, and he has told Washington insiders that he will act responsibly to uphold and defend the new law. This is after he told the Associated Press last July that the legislation would "put a stake through the heart of grass-roots and voter education initiatives."

What is to be done? The quartet of McCain, Feingold, Shays and Meehan are already talking about introducing a bill to completely restructure the FEC and turn it into something approaching a true law-enforcement agency. Later this month, a blue-ribbon group led by Fred Wertheimer, former president of Common Cause, will issue a detailed report on restructuring the commission. E. Joshua Rosenkranz, founder of the Brennan Center for Justice at New York University and a member of Wertheimer's group, says the key is getting rid of the six commissioners. Right now, he says, the FEC is "like putting three foxes and three wolves in charge of guarding the chicken coop. There needs to be a single head that is publicly accountable, like we have for the FBI." Rosenkranz also suggests giving that person a long enough term to insulate him from partisan meddling and enhancing the agency's power to impose fines.

The bottom line is that the FEC, like so many other regulatory agencies, is controlled by the industry it is supposed to oversee. And if partisan politicians can pick the cops on the campaign finance beat, the press, the public and, in particular, the reform community will have to keep the pressure on to make sure they abide by the spirit and intent of the new law.