Of course, the supporters bragged that they dropped some controversial provisions. One such provision changed the Federal Election Commission (FEC), which policies campaign finance laws, from a bipartisan agency to one with a partisan majority selected by the president.
The bill, now called the Freedom to Vote Act, ditches that direct effort to give the president a partisan majority at the FEC, though it still destroys the principle of bipartisan approval of enforcement actions. Even worse, it rigs a court review of FEC rulings against defendants.
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In a sign of the bill’s hostility to free speech, the measure further proposes doubling the statute of limitations for most breaches of federal campaign finance laws to 10 years. That’s longer than the statute of limitations for the crime of the attempted assassination of a member of Congress.
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The FEC was created almost 50 years ago, in the wake of Watergate, to prevent the president from weaponizing campaign finance laws against political foes. The most important feature is the Commission’s bipartisan makeup — six commissioners, with no more than three from any one party. No less than four commissioners have to approve initiating investigations or finding violations, thus ensuring some measure of bipartisan agreement may have violated the law.
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Under the Democrats’ proposal, the FEC would keep the same structure, though scrap the bipartisan requirement for enforcement action. Rather, the Commission’s general counsel would take control of actions like beginning an investigation and declaring a violation. The council's judgment would prevail unless, within 30 days, four commissioners voted to overrule it.
In other words, it would take a bipartisan coalition of four commissioners to stop an investigation instead of launch one. It would further take four votes to declare that no violation took place. The bipartisan requirement for finding a violation is removed, just as it was in the earlier bill.
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The FEC general counsel is a career civil servant, though, we should not assume he is without political preferences or bias. What kind of person aspires to regulate speech regarding campaigns and elections? Few free-speech advocates would think to apply for such a job. Nor are councils without partisan preferences. One former FEC general counsel later worked as general counsel to Senate Democratic leaders Tom Daschle (S.D.) and Harry Reid (Nev.) and one of Joe Biden’s presidential campaigns. Another worked for former Massachusetts Republican governor William Weld.
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Even assuming the counsel's integrity, partisan beliefs can influence how one views cases in partisan elections. That is a significant reason current law requires a bipartisan vote to launch an investigation or find a violation. Under the proposed Act, it would no longer be required to convince anyone from the opposing party to declare a violation.
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