Was Somebody Missing from the DISCLOSE Act Hearings?

Former Chairman of the FEC Dave Mason makes the case that the hearings on legislation to mute the effects of Citizens United v. FEC lacked a key witness, the agency that would be tasked with administering the new law.

The Un-DISCLOSEd Witness

By: Dave Mason
Special to The Examiner
05/13/10 5:57 PM EDT

Every so often a congressional committee holds a hearing with a “mystery witness,” a whistle-blowing employee or a criminal informant who testifies from behind a screen with no name provided. It’s great theatre and sometimes provides compelling evidence.

The House Administration Committee’s recent hearings on the “DISCLOSE Act” went the mystery route one better, including (or, perhaps more accurately, excluding) a mysteriously missing witness: anyone from the Federal Election Commission, the agency that would be charged with enforcing the proposed law.

Whether an oversight or a deliberate exclusion, the omission speaks volumes about the attitude and intention of the Committee’s unseemly rush to push DISCLOSE towards passage. Apparently the Committee isn’t really interested in a serious discussion about how the legislation would work, to whom it would apply, and whether its apparent effects really are intended.

Normally, when a congressional committee considers legislation amending a statute enforced by an existing administrative agency, agency leaders are among the lead-off witnesses at the hearing.  Even if an agency objects to the legislation, Congress needs (and usually wants) to hear what the agency has to say for two reasons: to make sure they understand any objections and to make sure the legislation actually accomplishes what the sponsors intend.  It is in everyone’s interest to make sure that legislation is workable and accomplishes what the sponsors intend.

In the case of the FEC, it is likely that commissioners’ policy views would split, but current commissioners’ views, comments, and questions would be well focused on the practical issues of how or whether they could enforce the new law. The Committee heard from former Commissioners Trevor Potter and Michael Toner, but they would probably be the first to agree that hearing from current Commission leadership is an important element of legislative consideration.

Often administrative agencies can provide helpful technical comments even when the agency doesn’t favor the policy involved.  The FEC policy staff has decades of experience and will have to draft regulations implementing the new law if it passes. If asked, they would undoubtedly provide insightful questions and observations about ambiguities, gaps, and possible unintended consequences of the DISCLOSE Act. But, apparently the Committee is just in too much of a hurry--or is just not interested in a serious non-partisan legal review.

Part of the problem with election law is that a lot of people who think they are experts just aren’t, including Members of Congress.

Read the full article here.