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With 2018 Midterms Approaching, Our Elections Are Not Protected

March 6, 2018, The Hill Op-Ed

Intelligence chiefs are warning Americans that Russia sees the upcoming 2018 midterm elections as a chance to continue its online campaign to deepen our country’s political divisions. Left unaddressed, the gaps Russia used to interfere in the 2016 presidential election will be exploited to greater effect in 2018 and beyond. We are going into another election cycle with no cop on the beat to police foreign interference, or to enforce the other laws that protect the American electoral system.

Together, three agencies have primary jurisdiction over elections: the Federal Election Commission (FEC), the Election Assistance Commission (EAC), and the Department of Homeland Security (DHS). That department last year designated elections as a part of our nation’s critical infrastructure. DHS has been meeting with state officials to say this is a very serious matter they need to concentrate on.

Yet, the departing head of the National Security Agency testified last week that the White House has issued no instructions on focusing government attention on the Russian threat. The security agencies say elections are a target, yet the other agencies responsible for dealing with this threat are either sitting on their hands or being undermined by government officials. At the same time, the EAC is only partially staffed and recent news reports show Speaker Paul Ryan (R-Wis.) has decided to recommend a change to its highly regarded chair during an election year, with no explanation.

The FEC has done nothing to address the tremendous and fundamental changes to our campaign system in recent years, from the rise of super PACs to new threats posed by untraceable money in online ads. The FEC has completely abdicated its responsibility to police super PACs and dark money groups like 501(c)(4)s, refusing to enforce current rules or put in place new rules to regulate their conduct.

The dark money groups currently provide a very easy avenue for foreign money in U.S. elections. The FEC has given a free pass to government contractors who violate the decades-old ban on using campaign contributions to curry favor with the officeholders. And the FEC has knowingly refused to update its campaign disclosure rules to help law enforcement officials detect and deter foreign interference through digital advertising.

Currently, only 21 percent of people are even “somewhat familiar” with the FEC. But its primary tasks — to investigate and punish violators of election law — are needed now more than ever. The Campaign Legal Center, the nonpartisan election watchdog organization where I am president, filed 13 complaints in 2016, all unresolved because the FEC is slow and often mired in gridlock.

The FEC’s failures can be traced entirely to its commissioners. For the last decade, Republican and Democratic presidents alike have agreed to congressional leadership demands for FEC commissioners who have an ideological preference for ineffective and minimal regulation of campaigns and elections.

But there is now a chance to fix the FEC. Two of the agency’s six commissioner positions are vacant, and the four remaining commissioners — some of whom have opposed almost all regulation and are responsible for gridlocking the agency — are serving on expired terms. In other words, all six commissioner positions can now be filled with new appointees.

The responsibility for fixing the FEC therefore falls on President Trump and the Senate. They can make the FEC a functioning agency again by appointing commissioners who take seriously their responsibilities to American voters and who believe in transparency and accountability. Led by such commissioners, the FEC could uphold the integrity of elections as it did, albeit imperfectly, when I worked there.

If the president does not place new commissioners on the FEC, our national campaign system will only continue to deteriorate. Most immediately, four commissioners is the bare minimum needed to take official action, such as passing rules or punishing lawbreakers. If the FEC loses one more commissioner before the Senate confirms new nominees, the FEC will be literally unable to enforce the law in the 2018 elections.

There is an obvious danger to urging the White House and Congress to appoint new FEC commissioners. White House counsel Don McGahn was previously one of the Republican commissioners who opposed almost all regulation of money in politics and acted to deadlock the agency and render it unable to act. Senate Majority Leader Mitch McConnell (R-Ky.) has been responsible for selecting McGahn and other anti-regulation Republican commissioners as part of his longtime opposition to the work of that agency.

Therefore, it is critical that Democrats insist that new commissioners be selected on a bipartisan basis and be committed to the important work of the agency, including foreign intervention in U.S. elections. It does the country no good to replace one group of ideologues dedicated to deadlocking the FEC with another, similar group.

Even with a full complement of commissioners, the FEC will regain its strength only if those commissioners believe in maintaining the freedom of American elections. Freedom from illegal super PAC activity, from government contractors buying influence, and, most seriously, from foreign interference. With 2018 approaching, now is the time for the White House to prioritize a strong FEC that enforces the law by appointing new commissioners that believe in its mission.

Trevor Potter (@TheTrevorPotter) is president of the Campaign Legal Center, a former chairman of the Federal Election Commission, and the head of Caplin & Drysdale's Political Law Group.

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