No Blame for the Designers

Today's Washington Post offers a diatribe against the recess appointment of FEC Commissioners. At least the Washington Post editors are consistent in their opposition to the use of the recess appointment process to fill any vacancy, but that is about all that can be said in defense of this screed.

The Bush administration, though, is said to be weighing a spate of recess appointments to the Federal Election Commission, where the terms of four of six commissioners have expired.

This would be a gross misuse of the recess appointment power, and if the reports that he's planning it are correct, President Bush ought to think again. The vacancies at the FEC -- one commissioner has left; three others continue to serve while they await successors -- aren't the product of congressional inaction. In fact, there haven't been any nominations for the Senate to act on. Rather, the recess appointments would let a bipartisan cabal evade examination of, and a vote on, nominees who will control the commission's direction.

Anytime you are appointing a majority of any body, whether it is the FEC, the FCC or the local animal control board, those nominees are going to influence the direction of the body--that is just simple mathematics. But I digress

The FEC is an agency designed for failure and accomplished at that mission. Its commissioners are evenly divided between Republicans and Democrats, and they have more often acted in the interest of the politicians who appointed them than the election law they are supposed to enforce.

Somehow the design failures of the FEC are blamed on the individual commissioners. If an agency is "designed for failure" why are we not blaming the desingers. If a toll bridge was designed to fail, do we blame the toll takers? No, we blame the desingers. In the case of hte FEC, the designer is Congress themselves, but they are all too often absolved from blame. If Congress truly wanted to pass a measure to reform the FEC, they could have done so with BCRA--but didn't--and still have the power to make the change. Will they? No, because it does not serve their self-interest to have a regulatory agency, that will police the political activities of Congress and congressional candidates, with too much power. Something the Post seems to have missed.

Not that I am campaigning for the job, nor likely to be apppointed, but I would love the opportunity for the Senate to question me. My first response to any question about lack of enforcement would be to point out that the Senate was complicit in the design failure and blaming the Commissioners and Commission staff for their weakness is misleading at best and hypocritical at worst.

Were I in the Presiden't shoes, I would recess appoint all four members and in doing so, issue a challenge to Congress. If you don't like it, tough, write a better law and I will appoint different commissioners.

Allison Hayward comments here and Bob Bauer here.

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