The most clearly written, comprehensive, nonpartisan, fair and effective laws are useless unless they are supported by comprehensive, nonpartisan, fair and effective administration and enforcement.
In fact, the failure to enforce the law may be more dangerous than not having the law at all, as it leads people to conclude that laws are ineffective in stopping the corruption of democracy. On the other hand, having an effective enforcement agency with credibility gives the public more faith in the campaign finance system and encourages candidates to comply with law. An effective campaign finance agency is also critical to the success of any public funding system. That is why creating mechanisms to ensure the proper enforcement of the law is critical.
Who is Responsible for Enforcement?
In many states, enforcement of the campaign finance and lobbying laws is the responsibility of the attorney general, while administration of the laws may be the responsibility of the secretary of state or another agency. Ethics rules may be found in laws under the jurisdiction of the attorney general, as well as in regulations enacted and enforced separately by the legislative, executive and judicial branches that cover their respective members.
The Makeup of The Agency
Creating an independent agency to oversee the administration and enforcement of the campaign finance, ethics and/or lobbying laws is often the best way to try to ensure comprehensive, nonpartisan, fair and effective administration and enforcement of the law. The agency can be headed up by a board or commission made up of appointed members. Whether they are appointed by the chief executive, legislature, other body or combination there of may be determined by the state’s constitution or by other administrative law requirements. Most agencies have an odd number of commissioners who serve for a term, while some agencies, such as the FEC, have an even number of commissioners (the FEC has six), with no more than half of the commissioners being from the same political party. In theory, since every action takes a majority of four commissioners, the actions of the FEC should be nonpartisan. However, the FEC’s structure has resulted in deadlock and inaction, causing the FEC’s chairwoman to acknowledge the agency has become “worse than dysfunctional.” It has now been proposed that the FEC be revamped or replaced with a new agency with an odd number of commissioners, including a strong chair who would serve for 10 years and be able to direct much of the agency’s actions. With the proper safeguards, a commission made up of an odd number of commissioners may be the most effective. Regardless of the actual structure of the commission or agency, the quality, temperament and commitment to enforcement of the law of the commissioners is critical. That is why some proposals include having a “blue ribbon” panel—possibly made up of judges, academics or other individuals without partisan ties—provide a list of possible appointees for the agency.
Independence of the Agency
The real and apparent independence of an enforcement agency is critical to its functioning. This is especially important where the agency is enforcing rules regulating the conduct of the people who control their budget, the appointment of their members and their very existence. Ways to protect the agency and its staff from political retaliation should be seriously explored. These could include protections in the agency’s enabling statute or even in the state’s constitution. It is also important that the agency find the correct balance between protecting the rights of those it is investigating and transparency to ensure the public is aware of its activities.
Issues with Establishing an Enforcement Mechanism
Among the issues involved with establishing an effective enforcement mechanism are:
- Determining where the enforcement responsibility should reside, e.g., attorney general, secretary of state or independent regulatory agency. While an independent agency may provide the best structure for effective and nonpartisan enforcement, legal, resource and political issues may affect where the responsibility is placed;
- Ensuring independence of the regulatory body or official. Wherever the responsibility is placed, the enforcement of the law must be protected, in appearance and reality, from partisan influence or undue control from those subject to the laws;
- Selecting individuals who are respected, nonpartisan, knowledgeable and independent to oversee enforcement;
- Deciding when criminal vs. civil enforcement is appropriate;
- Providing for remedies and penalties consistent with the nature and seriousness of any violation;
- Avoiding the reality or appearance of politically motivated enforcement;
- Avoiding inherent conflicts arising from enforcing laws governing the activities of people who wrote the laws and who have to enforce the laws;
- Providing transparency so the public can monitor the enforcement of the laws and
- Providing sufficient resources for timely and effective enforcement.