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Comparative Assessment of Central Electoral Agencies

The Electoral Commission in the United Kingdom

Introduction

The Constitution of the United Kingdom involves a blend of law and politics. Historically, a limited number of written constitutional documents and fundamental laws have set parameters on the exercise of executive authority. Most of the limits placed on the actions of the prime minister and Cabinet ministers have existed in the form of informal, unwritten constitutional conventions and the parameters of politically acceptable action.

Traditionally, conditions of majority government and disciplined parliamentary parties meant that there was normally the potential for predictable, unified policy leadership. Early in the 21st century, however, voters have denied any single party a majority, and coalition governments involving Cabinet-sharing between two parties has become the pattern for government at Westminster in London. In Scotland, Northern Ireland and Wales, as well at the level of local governments, minority and coalition governments have been more common.

The UK is a unitary rather than a federal state. This once meant that Parliament had complete authority over all public policy-making in the country; now, however, certain authority is shared with the European Union (EU). The first constitutional compromise with the principle of a sovereign national Parliament came when the UK entered the EU in 1973. After the first elections to the European Parliament took place in 1979 and the UK gained accession to the EU Council of Ministers, it became subject to certain laws and policies of the EU.

The second major change involved constitutional devolution to the constituent parts of the UK. Before 1998, Northern Ireland, Scotland and Wales were subject to laws and policies decided in London, and only a limited amount of administration was delegated to local authorities. However, following referendums in those jurisdictions, the Parliament at Westminster passed a series of three Acts that devolved legislative and executive authority to the three non-English parts of the UK. The devolution process created subordinate legislatures in Northern Ireland, Scotland and Wales, but there were significant differences in the authority they were granted. According to Bogdanor (2009, 89), "Devolution transformed Britain from a unitary to a quasi-federal state."

Since 2009, there are no fewer than five electoral systems in operation: i) for elections to the House of Commons, the method is simple plurality; ii) for the Northern Ireland Assembly, the method is single transferable vote; iii) for the Scottish Parliament and the National Assembly of Wales, the method is the "additional member" system, in which electors vote twice – once for the local candidate and once for the party; iv) for elections to the European Parliament, there is a regional list method; and v) for all directly elected mayors, the supplementary vote method is used. There are also directly elected police and crime commissions in England and Wales, and, in these elections, the supplementary vote system is used.

History

Until 2001, all elections in the UK were overseen and coordinated by a central government department in London called the Home Office, which was led by a minister of the Crown. However, electoral registration and the running of elections was the responsibility of local authorities (see discussion below). The tradition of local control allowed the diverse circumstances across communities to be recognized, but it also gave rise to inconsistencies in the procedures and standards of electoral administration. Even after the national Electoral Commission (EC) was created in 2000, local electoral registration officers, acting returning officers and counting officers remained in charge of national parliamentary elections (Gay 2010). These local officials are not employees of, or under the direct control of, the EC.

During the late 1990s, several bodies recommended that an independent commission be created to oversee elections, with the aim of achieving both greater independence from the government and promoting a more uniform approach to how elections are conducted. However, the main impetus for the creation of the EC came from the work of a non-departmental public body called the Committee on Standards in Public Life (CSPL), which had been created in 1994 in response to a scandal involving undue influence by lobbyists in the parliamentary process (Ewing 2001). After issuing four reports on the ethical standards of public life, the CSPL focused on issues of party funding and campaign spending. Its fifth report, issued in 1999, recommended a "totally independent and authoritative election commission with widespread executive and investigative powers and the right to bring cases before an election court for judgment" (Committee on Standards in Public Life 1998, 4). It also envisioned that the EC would register political parties and supervise election finance rules.

The proposal for an electoral commission was implemented by the Political Parties, Elections and Referendums Act 2000 (PPERA), and the EC was established in November 2000. In April 2002, the Boundary Committee for England (formerly the Local Government Commission for England) became a statutory committee of the EC. Its duties include reviewing boundaries for local government elections (see further discussion below).

Membership

Based on the PPERA, the EC consists of six members, including a chairperson. The commissioners are appointed by the Queen based on an address from the House of Commons. They are recruited and nominated by the Speaker's Committee on the Electoral Commission (henceforth referred to simply as the Speaker's Committee), which consists of members of the House of Commons (see discussion in "Accountability and Independence" below).

The PPERA originally set out strict limits on eligibility to serve on the EC; these were intended to prevent even a hint of partisan bias in appointments. Individuals were prohibited from serving on the EC if they were members of a political party, had held political office in the previous ten years or had donated to a political party. Employees of the EC were also subject to restrictions on their political involvement (Ghaleigh 2010, 9), and it remains the case today that the executive director cannot be a member of a political party. The executive director in turn has designated 12 staff, mainly in the campaign finance area, who also cannot be involved in partisan activities.

The principle of a strictly non-partisan commission was changed somewhat by an amendment to the PPERA in 2009, which provided for three of the ten commissioners to be nominees of the largest political parties (Conservative, Labour and Liberal Democrats) and one to be a nominee of the minor parties represented in the House of Commons.

The EC did not oppose the changes to its membership structure, acknowledging that they were matters legitimately to be decided by Parliament, but it did point out the risks involved in moving to a mixed member commission. The bulk of academic opinion opposed the change.

However, the CSPL, the Speaker's Committee and all political parties supported the change on the grounds that the EC had not demonstrated sufficient knowledge of or attentiveness to the practicalities of the political process. In defence of the change, the government declared that party appointees "should bring their political experience to bear in a non-partisan manner and not act as representatives or delegates of their parties" (Committee on Standards in Public Life 2007, 17).

The result of the 2009 amendments was to create two categories of EC members. The six "selected" members are recruited and recommended for appointment by the Speaker's Committee. The selection process is conducted on the basis of established principles and practices for all such public appointments, which are overseen by a Commissioner of Public Appointments. The process for appointment of selected commissioners includes public advertising, the opportunity for anyone to apply and a review of applications with the support of specialists on appointment processes. In other words, appointments are not made simply because the government has identified candidates and brought their names forward to the Speaker's Committee.

Ineligibility based on partisan political involvement continues to apply to this first group of selected commissioners. However, because the four "nominated" commissioners are expected to contribute expertise based on their first-hand knowledge of the political process, the restrictions that prevent party activists from being appointed to the EC do not apply to them. Nominated commissioners are, however, not allowed to donate to political parties. Both groups of appointees are still subject to the further restriction that they cannot be elected members of any parliamentary body in the UK, of the European Parliament or of any elected local government body.

The 2009 legislation also increased the minimum and maximum number of commissioners who may be appointed. The minimum number was increased from five to nine, and the maximum number was increased from nine to ten. The increase in the minimum was intended to ensure that "nominated" commissioners would always be in the minority on the EC. It has become the practice, but is not a statutory requirement, to have a "selected" commissioner from each of the devolved jurisdictions and to have that person play a lead role on electoral matters in that part of the country.

Even in the case of the nominated commissioners, there is an informal process of the Speaker approaching the political parties to provide three names (rather than one) and then convening a panel (usually consisting of the Speaker, two other MPs from the committee and the chairperson of the EC, with the support of an appointments specialist) to provide names to be approved by the full committee.

The chairperson of the EC is appointed by the Crown on the recommendation of the House of Commons for a term of up to ten years. The chair cannot be one of the commissioners nominated by the parties.

The Speaker's Committee identifies and selects nominees with the assistance of an outside panel of eminent citizens and recruitment consultants. Before the name of a nominee is presented to the Commons, the Speaker is required under PPERA (section 3.2) to consult the leaders of the registered parties with MPs in the House of Commons. Chairpersons can be reappointed on the recommendation of the committee, but by law, they cannot be one of the nominated commissioners. To date, there have only been two chairs of the EC. In 2009, Jenny Watson replaced Sam Younger as chair for a three-year term, and in 2012, she was reappointed. Because of problems of long queues in the 2010 general election and postal ballot fraud in several by-elections, there was controversy over her reappointment (Wright and Taylor 2012). This incident reveals a more general tendency, when problems arise in the electoral process, for critics in Parliament and the media to blame the most visible, responsible official and pay little attention to the reliance of that official on the many other actors involved in staging sound elections.

The chairperson has a number of key roles: to provide leadership in developing collegiality; chair monthly meetings; represent the EC in dealings with government, Parliament, devolved legislatures, political parties and other stakeholders; select (with the other commissioners) the executive director and other senior managers; take (with the other commissioners) decisions about exercising statutory powers; and serve as the chief counting officer for any nation-wide or regional referendum.Footnote 23

Based on the review of the EC conducted by the CSPL, the PPERA was amended in 2009 to make the position of chairperson part time rather than full time.Footnote 24 The justification was that a part-time role would make it easier to attract "high-quality talent" and ensure that the role remained "non-executive and high level," not operational (United Kingdom, Parliament, House of Commons 2008, 6). EC members are seen to be equivalent to "non-executive" directors on corporate boards in the sense that their role is to set policy directions, allocate resources and oversee management, not to be involved in deciding matters of compliance or enforcement.

Mandate, Powers and Responsibilities

The EC is an independent statutory body. Its mandate is broader than what was proposed by the CSPL and includes:

The PPERA originally provided that a pre-existing committee on electoral boundaries would operate within the framework of the EC. However, based on a recommendation in the 11th report of the CSPL (published in January 2007), the government decided that in the spirit of devolution, independent committees established in each of the three devolved jurisdictions would conduct future boundary reviews (Committee on Standards in Public Life 2007). It was also decided, however, that the EC would retain an oversight role over the boundary review processes for all parts of the UK, including for local governments, and would be authorized to provide recommendations for improvements to those processes.

The EC declares that its fundamental purpose is "to support a healthy democracy where elections and referendums are based on our principles of trust, participation and no undue influence" (Electoral Commission 2013b). The tools available to it to implement its mandate are discussed below.

Changes to PPERA in 2009

As noted above, the EC's mandate has evolved to become quite extensive. The CSPL's original proposal called for a narrow focus on campaign finance matters, but the subsequent government Bill added roles to supervise referendums and expenditures by third parties, promote elector participation and provide policy advice on electoral law reform.

The original PPERA declared that the EC was to "monitor" the raising and spending of money, and this wording created ambiguity as to whether the EC had a relatively passive role in receiving and disclosing information or a more active role in investigating complaints and imposing sanctions for violations of the law. The EC had no power to require witnesses to attend for an interview and could pursue fines only for a limited number of contraventions. For other potential breaches, the only option was to refer for criminal prosecution – action that was often not proportionate to the breach.

The amendments made to the PPERA in 2009 were intended to strengthen the EC's regulatory role by making available to it a wider range of investigatory powers and sanctions. The EC had recommended these changes, including in its submissions to the CSPL over the years. This is not the place to describe those powers in detail; suffice it to say that Part 1 of the law clarified that the EC was not only to monitor, but also to regulate for the purposes of ensuring compliance (section 1), added new powers to investigate and obtain information (section 2) and gave the EC a wide range of sanctions to deal with contraventions and offences (section 3).

In December 2010, the EC released a document called "Enforcement Policy," and in July 2012, it published a follow-up document entitled "Use of New Investigatory Powers and Civil Sanctions." Both documents outline its approach to exercising its new authority, making clear its intention to rely mainly on advice and guidance and to use its authority to impose fines in a selective and proportionate manner when voluntary compliance is not possible. Under the law, the EC is required to report on its experience with the use of its new powers, and, to date, it has issued three such reports. In summary, according to the EC, the new regime has been successful. Overall levels of voluntary compliance have improved, and it has not imposed a vast number of sanctions under its new authority.

Under the PPERA 2009, the EC has the power to give advance notice of disclosure requirements and suspected offences and to identify the potential consequences (including criminal sanctions) that may result from a failure to comply with a notice.

Steering Local Electoral Administration by Remote Control

While the EC now has a clear regulatory role in election finance matters, other dimensions of the electoral process are not subject to its direct control. For example, elections are administered locally. An electoral registration officer (ERO) compiles and maintains the list of eligible voters. Returning officers are treated as honorary positions and are held by local mayors or sheriffs, and it is the acting returning officer (ARO) who organizes an election. In turn, AROs delegate the operation of the election to deputy returning officers. In most cases, the ERO is also the ARO. Traditionally, AROs had considerable autonomy in their work so that the creation of the EC in 2000 to provide advice and scrutiny was not universally welcomed by local electoral authorities. These officials are appointed by local government authorities.

Since 2000, the EC has sought to balance national support and guidance with local flexibility in several ways. It publishes its guidance to EROs and AROs on its website. Based on amendments to the Electoral Administration Act 2006, the EC was given authority to set performance standards for EROs, AROs and referendum counting officers. It published the first set of seven standards in July 2008 and its first assessment of performance in April 2009. It developed these performance standards in consultation with local electoral authorities and provided support for those officials to engage in self-assessment and public reporting related to electoral processes; it measured the extent to which local officials had adopted these standards and then published its findings online (James 2013; Electoral Commission 2010a). Rather than just focusing on performance after elections, the EC works with local authorities in advance to catch any problems that might affect electors.

After problems occurred during the 2010 general election (long queues, missing ballots, etc.), the EC went further in connection with two referendums held in 2011 by publishing detailed instructions to local electoral officers. This gave the EC greater input, but at a cost, according to one commentator, of overlooking local knowledge, entailing greater expense and losing a sense of ownership by local authorities (James 2013).

In 2012, the UK Electoral Advisory Board was established, composed of returning officers for elections in all parts of the UK and for EU elections, representatives of the Association of Electoral Administrators and representatives from government. The board is chaired by the executive director of the EC, and it aims to ensure that well-run, quality elections take place and to provide advice to governments for this purpose.

Operational Arrangements

The EC is headquartered in London, with regional offices located in the three devolved jurisdictions. The executive director provides day-to-day leadership of its operations, including staffing and financial matters. He or she directs the executive team, which is composed of directors for Party and Election Finance, Electoral Administration, Finance and Corporate Services and Communications. He or she reports to the EC, which does not have direct involvement in operational matters, particularly related to the enforcement of electoral law.

The EC is directly funded by a vote of Parliament. Its budget is divided into three categories: core funding, event-related costs and policy development grants, which are paid to political parties. In 2011–2012, Parliament voted £20.79 million for regular EC activities, and in 2012–2013, funding for referendums was provided in the amount of £66 million.

The EC's core funding is affected by government-wide budgetary policy. As a result of an ongoing government spending review process, the EC committed to delivering savings of 32 percent from the core budget over the years 2010–2011 to 2014–2015 (Electoral Commission 2013, 23).Footnote 25

EC employees are not members of the civil service; in fact, the current executive director had to resign from the civil service to assume his position. However, in determining the classification and remuneration of its employees, the EC must by law take into account comparable positions in the civil service.

Accountability and Independence

The EC's primary accountability is to Parliament and, more specifically, the Speaker's Committee. The Speaker's Committee was created under the PPERA (section 2). The Speaker acts as chair and is responsible for establishing the membership, which must reflect the balance of party representation in the House of Commons. Membership typically includes the Speaker, two ministers of the Crown, the Chairman of the Home Affairs Committee of the House of Commons and five backbench members of the Commons.

The committee performs a number of functions.

The Speaker's Committee is the parliamentary "home base" for the EC and the main forum where it is held accountable. On the important matter of setting the EC's budget, it is legally required to consult the Treasury Department. It is not required to obtain Treasury approval, but, if in approving the EC budget it goes against a clear Treasury recommendation, this fact must be reported by law to the House of Commons.

From time to time, the EC's affairs can be the subject of debates (for example, on election-related bills) and scrutiny in Question Period and before parliamentary committees. For example, on policy issues, such as possible reforms to electoral laws, the EC appears before the Commons Political and Constitutional Reform Committee. There is no generalized requirement that governments consult the EC before introducing changes to electoral law, although a number of legislative matters require advance consultation. However, consultation does not mean that governments must accept the EC's advice.

While not a formal accountability relationship, the EC strives to be responsive to a range of stakeholders who are affected by its policies and practices. The Parliamentary Parties Panel and similar panels for the three devolved legislatures give the EC advice and information. In addition, the EC regularly engages in consultation exercises, maintains an extensive website and Facebook presence and deliberately seeks out advocacy groups promoting electoral reform. It also conducts research and posts it online for free download. Generally, the EC operates in a manner that conforms to the Freedom of Information law.

Challenges

The following is a list of the challenges that the EC currently faces:

The Federal Election Commission and the Election Assistance Commission in the United States

Introduction

The national government in the United States operates on a presidential-congressional model, which involves the separation of power among the three branches of government: the president, the Congress and the courts. There is an elaborate system of checks and balances among the three branches, which is meant to avoid any undue concentration of authority in a single branch. Major policy changes in the US require the agreement of at least two, and often all three, branches of government.

The US is also a federal system of government, in which authority is divided between the national and state governments. The Constitution of 1787, which sets out the responsibilities of the two orders of government, divided authority over national elections between Congress and the state legislatures. Article I, Section 4, the "Elections Clause," grants state legislatures the authority to regulate the "times, places, and manner of holding Elections" for Congress. At the same time, it grants Congress the authority to "make or alter" these state rules. The Supreme Court has ruled that these provisions apply to presidential elections (Benson 2008, 347). Article II of the Constitution allows Congress to set the date for presidential elections. The Constitution also provides for the establishment of an Electoral College to serve as an intermediary between voters and the final selection of the president and vice president.

Congress has enacted only a limited number of laws related to elections. Most of them deal with the right and the opportunity to vote and with political finance.Footnote 26

History

After the high-profile Watergate scandal in the 1972 presidential election, Congress established the Federal Election Commission (FEC) through a 1974 amendment to the Federal Election Campaign Act (FECA), originally passed in 1971. As a national agency, the FEC regulates how money is raised and spent in national elections. Under the Revenue Act, the Presidential Primary Matching Payment Account Act (1975) and the Presidential Election Campaign Fund Act (1975), the FEC administers public funding for presidential elections. Its authority, however, does not extend beyond these financial matters to include other aspects of national electoral administration. The role, structure and operations of the FEC are discussed below.

Congress has also used the Constitution's Spending Clause to further the aims of these Acts by attaching certain conditions to the transfer of federal money to state governments. In 2002, Congress passed the Help America Vote Act (HAVA), whose main goal was to increase access to the polls while reducing the risk of fraud (Tokaji, 2009). The new law provided for the creation of the Election Assistance Commission (EAC), which serves as a clearing house for resources on electoral administration and as a mechanism for grants to states to cover such expenses as the purchase of modern voting machines (Benson 2008, 349–350).

Despite federal transfers to state and local jurisdictions, issues concerning the right and opportunity to vote continue to beset the electoral system. After numerous complaints were lodged during the 2012 elections about elector eligibility and long lineups, on March 28, 2013, President Obama appointed a Presidential Commission on Election Administration. The nine members were to be individuals with knowledge of the administration of elections. The commission was instructed to hold public hearings across the country and, within six months of its first public hearing, make "best practice" recommendations. In carrying out its mandate, it was instructed to avoid duplicating the efforts of other entities.Footnote 27 In January 2014, the commission delivered its report.

Even with these intermittent national actions, the state legislatures are the predominant source of laws regulating the electoral process. The state legislative process with respect to electoral matters has been described as often "piecemeal, sporadic and dominated or driven by partisan concerns" (Benson 2008, 357). The electoral codes passed by state legislatures tend to be general and grant widely varying powers to local governments to conduct elections. This further delegation of responsibility from the state to the local level means, in effect, that elections for the four national offices – president and vice president along with representatives and senators – are mainly planned, organized and executed by local authorities in approximately 13,000 counties and municipalities across the country. (See Appendix B for a brief discussion of the roles of state and local governments in the national electoral process.) Some local election officers are appointed and others are elected, but almost all are selected on a partisan basis. The 2014 report of the Presidential Commission on Election Administration concluded that these arrangements did not promote professionalism in electoral administration and in fact undermined public confidence in the electoral process (Presidential Commission on Election Administration 2014, 18).

It should also be noted briefly that both national and state courts play a role in overseeing the electoral process. In numerous, and at times contradictory, rulings, the Supreme Court has sought to balance free speech with fair electoral processes and has imposed limits on the authority of the FEC, most notably in Citizens United vs. the Federal Election Commission.Footnote 28 State courts are charged with resolving disputes and punishing offenders of electoral laws, but it is rare for a state court to overturn an election outcome (Benson 2008, 351–54, 357–59).

In summary, the US national electoral system is highly complicated, involving several institutions and actors that interact to shape, administer and enforce laws, policies and practices. There is no national body that has strong legal and regulatory authority over all dimensions and stages of the electoral process. According to the critics, the fragmented electoral system lacks national standards, creates opportunities for electoral irregularities and leads to more contested elections (Issacharoff, Karlan and Pildes 2002, 223).

Membership of the FEC

The composition and appointment process for the FEC has always been controversial. The original design provided that the president, the Speaker of the House of Representatives and the president pro tempore of the Senate would each appoint two members to a six-member commission. Officially, this appointment process reflected the separation-of-powers principle enshrined in the Constitution; unofficially, it reflected a political concern: to ensure that the new regulatory body would not intrude too heavily into the sensitive domain of politics and money.

In 1975, a lawsuit was launched, challenging the constitutionality of the appointment process. The appellants used the separation of powers doctrine to argue that because the FEC's powers were executive, rather than legislative, in nature they fell under the appointments clause (Article II, Section 2, Clause 2) of the Constitution, which authorized only the president, with the advice and consent of the Senate, to make executive appointments.

A year later, the Supreme Court in Buckley v. ValeoFootnote 29 sided with the appellants. The court ruled that the FEC, as then constituted, could no longer exercise its authority to enforce the law, determine eligibility for public funding, conduct civil litigation or issue advisory opinions because those functions were executive rather than legislative. The FEC's informational and auditing functions, however, were found to be legislative and, therefore, constitutional (Kershner 2010).

In response, in May 1976, Congress passed and the president signed FECA 1976, which reconstituted the FEC to its present structure of six full-time members, appointed by the president and confirmed by the Senate. The revised law still provided for close congressional scrutiny by making the Secretary of the Senate and the Clerk of the House of Representatives ex officio members of the FEC without voting rights. This meant that these top congressional officials would be privy to the most sensitive FEC discussions about enforcement matters concerning the re-election campaigns of their fellow lawmakers (Mann 1997, 277).

According to FECA, six voting members of the FEC shall be chosen "on the basis of their experience, integrity, impartiality and good judgment." However, the anticipation is that members will have partisan identities because the law provides that no more than three members can be affiliated with the same political party; on a six-member commission, this implies that three will be Democrats and three will be Republicans.

The theory behind the bipartisan commission model is that the two parties will "check" each other so that neither party can take political advantage of the other in enforcing campaign finance laws. It is also argued that appointing commissioners with partisan affiliations will ensure greater awareness of the realities of the political process and greater responsiveness to the concerns of elected representatives.

Critics of the FEC membership structure claim that it undervalues impartiality, professionalism and expertise in overseeing election finance matters and places a premium on partisan political connections. They also suggest that the bipartisan model regularly produces deadlocks based on tie votes. However, other commentators argue that principle rather than partisanship typically guides decision-making and that deadlocks are relatively rare. The evidence for these conflicting claims is examined in Appendix C.

Political Bargaining on Appointments

To ensure a favourable outcome to the confirmation process, the president's office floats the names of prospective nominees with key members of Congress, including the party leadership in both Houses (Ostrander 2013, 8). The names of nominees who make it through this initial screening are placed before the Senate, and the nominations are referred immediately to the Senate Rules Committee, where they may be the subject of public hearings. Delays in reviewing nominations can occur because other business takes precedence and because, occasionally, this becomes a tactical means of gaining leverage in other political disputes. Once reviewed, nominations are reported back to the Senate with a recommendation from the committee – usually to confirm the nominee – and a vote is held. If a nomination has not been approved before a congressional session ends, these nominees are returned to the president and must be reintroduced at the start of the next session. Presidential nominations rarely fail, but achieving timely appointments to ensure a full membership on the FEC has proven to be difficult, especially over the past several decades, when hyper-partisanship has dominated the political process in Washington.

Commissioners were originally appointed for a six-year term and were eligible for renewal, but in 1998, Congress changed the law to allow for only one term. The one-term limit was justified as a way of insulating commissioners from political pressures that might arise if they had to look to the president and the leadership in Congress for renewal (Mann 1997, 277). However, it has produced considerable turnover at the FEC.Footnote 30 Terms are staggered; this means that every two years, two new appointments must be made, and this results in a lack of continuity in membership.

When vacancies occur, they are filled in the manner described above. Commissioners may serve past the expiration of their terms until a successor is appointed. When Barak Obama became president in January 2009, there were four vacancies, and his first appointments were not confirmed until September 2013 (Levinthal 2013). The two appointments restored the FEC to full strength, but the other four commissioners are all serving on expired terms.

Commissioners are full-time appointees and are not allowed to have any outside employment. The chair and vice chair are elected each year from among the FEC members, and they must come from different parties. No commissioner is allowed to serve as chair more than once during his or her term. The chairperson does not have decision-making authority, nor does he or she have sufficient status to act as an honest broker when substantive disagreements arise.

Mandate, Powers and Responsibilities of the FEC

The name of the FEC is somewhat misleading because it deals not with a broad range of electoral matters, but only with campaign finance issues. As mentioned earlier, the FEC was created by a 1974 amendment to FECA, a statute that limits the sources and amount of contributions used to finance federal elections and requires public disclosure of campaign finance information.Footnote 31 According to Thomas E. Mann, a leading scholar on campaign finance issues, Congress designed the "watchdog" agency "to operate on a tight leash strictly held by its master" (1997, 277). Many other informed commentators agree that the structure of the FEC and its legal authority make it very difficult for it to provide effective and expeditious enforcement of campaign finance laws.

In 1976, only two years after the FEC was created, Congress took the first of a series of steps to curtail its authority. First, by amendments to FECA, Congress granted itself the authority to disapprove regulations proposed by the FEC and immediately used this authority to veto the first two such regulations. Second, advisory opinions (see below) that the FEC issued in lieu of regulations could apply only to specific cases and could not have general applicability. Third, the FEC was prohibited from investigating anonymous complaints or violations reported in the media. Finally, FECA 1976 pushed the FEC to minimize reliance on regulation and litigation and instead promoted reliance on informal methods of consultation, conciliation and persuasion. Further amendments to FECA in 1979 reduced the administrative "burdens" on candidates and parties by requiring fewer reports during electoral cycles. They also removed the FEC's authority to conduct random audits, which members of Congress from all parties likened to "fishing trips."

It is not possible in the space available here to describe fully the responsibilities and activities of the FEC,Footnote 32 but we will discuss four broad sets of procedures that the FEC has established to implement FECA: rule-making, advisory opinions, auditing and analysis, and adjudication.

Rule-making involves the FEC interpreting and refining the law as passed by Congress. New regulations may be required as a result of changes to FECA passed by Congress, or the FEC can act independently when existing regulations are regarded as unclear or inadequate (for example, when the Internet changes political practices). Proposed rules are published in the daily Federal Register, and individuals and organizations are invited to submit arguments for or against them. Individuals may also petition the FEC to introduce a new rule or modify or remove an existing rule, and Congress can veto any rule that is proposed. The convoluted history of campaign finance regulation involves good intentions, constitutional setbacks and retrenchments of former rules.Footnote 33

Another way to clarify points of the law when individuals or organizations request a formal interpretation is by issuing advisory opinions. They must deal with specific circumstances and cannot be of general application, and drafts are discussed at the FEC's public meetings. The advisory opinion process has been harshly criticized for allowing so-called super political action committees (super PACs) to escape the election spending limits imposed on parties and candidates. As a 2012 book written by two veteran election commentators concluded, the FEC's advisory opinions "gave the green light for mendacity that makes laughable the candidates' claims that they have no connections with the super PACs created in their names" (Mann and Ornstein 2012, 153).

In terms of public reporting, candidates for the Senate, the House of Representatives and the presidency are required to file public reports on revenues and expenditures as well as report donations over US$200. In 1979, the FEC lost the authority to conduct random audits; since then, audits can be conducted only as part of a complaint investigation or if FEC staff detect potential violations based on public filings by candidates for national office.

Individual citizens and organizations can file complaints with the FEC regarding possible violations of the law, and the FEC must decide whether to investigate. It will not investigate anonymous complaints. The time-consuming nature of the investigation process means that few complaints are resolved in the electoral cycle in which they arise, and in some instances, successful candidates can be installed in office before they may face a small fine for violation.

By law, the FEC has exclusive civil jurisdiction over all campaign finance violations. This statutory authority seemingly strengthens its enforcement capacity, but for reasons too technical and lengthy to be described here, the monopoly over civil actions can actually hamper both agency enforcement and private actions by citizens in response to alleged violations.Footnote 34

When violations are blatant and/or persistent, the FEC can impose punitive sanctions, and knowing and wilful violations can result in imprisonment. Most minor violations, such as late filings of reports, are dealt with through a conciliation process (the Alternative Dispute Resolution process, introduced in 2000), which can result in civil penalties in the form of fines. Since 2008, the FEC has operated an Administrative Fines Program. For actions involving alleged criminal wrongdoing, the FEC must work with the Justice Department to obtain convictions.

In general, the FEC prefers to rely on voluntary compliance by signalling in advance its intentions to enforce different requirements under the law.

Operational Arrangements

The FEC receives an annual appropriation, which in 2012 was US$66.4 million, up from US$54 million in 2006. Despite an explosion of political spending hastened by a series of Supreme Court decisions that reduced restrictions on spending by corporations, associations, labour unions and political action committees, the agency's funding levels have remained flat for five years, and staffing levels have fallen to a 15-year low. Key executives have also left in the last few years (Center for Public Integrity 2013).

The FEC has 375 full-time employees, and personnel costs account for 6 percent of its budget. The largest portion (69 percent) of these personnel costs are spent in the General Counsel division, which is responsible for developing policy and litigation as well as handling complaints. The remaining (31 percent) is spent on infrastructure, including IT and contracts with IT consultants. The FEC is headquartered in Washington and has no regional offices.

A recent report from a campaign reform organization concluded that the FEC was chronically underfunded and understaffed (Wertheimer and Simon 2013, 20–21). It also recommended that the agency be provided with multi-year funding to allow for planning over the electoral cycle.

All of the FEC's core regulatory functions – rule-making, advisory opinions, investigations, administering fines and launching court cases – require four votes from the six members. This brings us back to the widespread criticism of deadlocks in the FEC, which allegedly render it ineffective as a regulatory body. But the popular image of a dysfunctional agency divided along party lines has been largely based on anecdotal evidence in the media. Empirical analyses of the FEC's actual decision-making have been relatively rare. A valid examination of the extent of partisan deadlock would have to include the different types of decisions made by the FEC over time rather than relying on a few high-profile controversies or a snapshot of agency decision-making in a short time period. Appendix C gives an overview of several empirical analyses using different kinds of evidence and covering different time periods. The findings are mixed, but generally not positive about how well the FEC fulfills its mandate in an effective manner.

Accountability and Independence

The FEC can most accurately be described as a semi-independent regulatory agency. It is subject to a number of formal constraints on its authority and to multiple accountability requirements. There are a large number of so-called stakeholders who are affected by FEC actions and/or who can affect its performance. Meeting the expectations and demands of different institutions and actors involves a difficult balancing act that is inherently political and risky.

The president plays a major role in determining the direction and effectiveness of the FEC because he or she can propose legislation amending its formal mandate. Under conditions of divided government, however, there is often no guarantee that amendments will be approved by Congress, and, even more often, approval requires compromises. The president appoints members to the FEC, subject to Senate approval, and can recruit nominees who share his or her philosophy on campaign finance regulation. The president submits an annual government budget to Congress for review and approval by both Houses. The Office of Management and Budget (OMB) within the federal bureaucracy supports the president in developing budget proposals. The FEC is part of this budgetary process and must negotiate with the OMB on its budgetary requirements each year.

Finally, by providing administrative policy leadership for the national public sector, the president can insist that certain management approaches be followed across the entire range of government, including the FEC. For example, following President Obama's management agenda, the FEC must produce a five-year strategic plan along with an annual performance and accountability report, both of which are public documents.

Compared to legislatures in most Cabinet-parliamentary systems, Congress, especially the Senate, can be a powerful political force. Congress sets the FEC's mandate and can amend the law at any time. The Senate is also involved in the appointment of members. The FEC budget must be reviewed by both House and Senate committees and then approved by a vote in both chambers, and several committees in both Houses of Congress provide additional general oversight of FEC operations. Primary responsibility for such scrutiny resides with the Senate Committee on Rules and Administration and the House of Representatives' Committee on House Administration. These committees can roam widely over election finance matters.

In addition to being accountable to political actors and central bureaucratic rules and procedures, the FEC is also answerable before the courts. In the highly politicized environment of recent decades, it has spent a great deal of time defending itself against lawsuits of various kinds. On its website, it devotes several pages to ongoing litigation and selected campaign finance cases, and it provides an alphabetical listing of all court cases in which it has been involved.Footnote 35

Transparency is a means of promoting accountability to other parts of government, stakeholders and the public at large. The FEC has taken a number of steps to operate in an open manner. It holds regular open public meetings, usually on Thursday mornings, during which it considers new regulations, advisory opinions, audit reports and other actions to implement campaign finance laws. It uses closed executive sessions to discuss pending enforcement actions, litigation and other matters that by law must remain confidential. In addition, it provides proactive disclosure on its website of information on proposed regulations, investigations underway and completed, advisory opinions and litigation, both ongoing and completed.

The Election Assistance Commission

When the Election Assistance Commission (EAC) was created in 2002, Congress chose to replicate the bipartisan composition of the FEC. The EAC is not a regulatory body; it exists to promote national electoral standards, provide information to electors and candidates, and transfer federal money to state and local governments to upgrade election processes.

The four members of the EAC are nominated by the president based on recommendations from the majority and minority party leadership in the House of Representatives and the Senate. Appointments are for a term of four years, and commissioners can be reappointed for a second term. No more than two commissioners can belong to the same party. The chair and vice chair are selected from among the members for a one-year term and must come from different parties. Members may serve in these positions only once during their terms.

Normally, any action of the EAC requires the votes of three of the four commissioners, and, in the past, this has created deadlocks along partisan lines. However, since December 2011, all four seats on the EAC have been vacant. Without a quorum of commissioners, the EAC cannot adopt policy, issue advisory opinions to the states on the use of HAVA funds or conduct audit appeals (Election Assistance Commission 2013, 2). Its functions are, therefore, being directed by an executive director, who is herself serving in an acting capacity. Agency staff are authorized to conduct some routine operations, such as certification of voting systems and dispersing grants.

The EAC had a budget of US$11.5 million for 2012 and employed 24 full-time staff. The budget must first be approved within the executive branch before it goes to Congress to be passed. The EAC uses a Board of Advisers, a Standards Board and a Technical Guidelines Development Committee to provide outside advice on the performance of its duties.Footnote 36 Each year, the EAC must submit a report to Congress on its activities as well as a performance report. It must also submit a five-year strategic plan to Congress; the next plan is due in 2014.

This is not the place to attempt to assess the HAVA legislation or the role of the EAC in achieving the dual goals of promoting access to the polls while reducing the risk of voter fraud. HAVA requires states to have computerized voter registration lists. But as the distinguished legal scholar Daniel Tokaji wrote, "Like so much federal law governing election administration, the rules governing states' registration databases are murky and subject to reasonable disagreement" (2009, 10). He went on to conclude that HAVA "did little or nothing to change the hyper-decentralization of American electoral administration" (12). A somewhat more positive assessment was offered by the principal researchers of the AEI-Brookings Election Reform Project, who concluded in 2010 that HAVA, even with all its limitations, was the high-water mark for electoral reform in Congress. They did not see much immediate prospect for a new version of HAVA. The EAC has sent billions of dollars to state governments to adopt new voting technologies, and improvements have definitely been implemented, but for the future, funding for improvements in electoral administration will depend on state appropriations (Fortier, Mann and Ornstein 2010).

The EAC has been in political and administrative trouble for a number of years. Several bills have been brought before Congress to eliminate it and transfer some of its functions to the FEC. Critics assert that the EAC is no longer necessary because it has fulfilled its primary purpose of disbursing HAVA funds after the debacle of the 2000 election. However, its defenders claim that given the budget strains on local governments, there is an even greater need for the EAC's resources and support (Martinez 2013).

Challenges

The governance structure for national elections in the United States entails divided authority on a vertical basis among national, state and local governments as well as on a horizontal basis at the national level among Congress, the president and the courts. Most electoral administration matters are actually decided by local government authorities, subject to state oversight and only limited statutory direction from Congress. This highly decentralized approach may increase responsiveness to local circumstances, but this comes at the cost of a lack of consistency and national standards.

Congress has chosen to create two EMBs based on bipartisan membership. Both have been rendered dysfunctional by partisan and ideological infighting among EAC members, and they are unable to take decisions on key issues. The bipartisan commission model involves the risk that commissioners will understand that their role is to act as partisan representatives, especially when contentious issues arise. Even when commissioners have background education and experience relevant to positions in the two agencies, there is the risk that parties, advocacy organizations, the media and the public will perceive them as neither independent nor objective in their interpretation and enforcement of campaign finance laws.

But the internal divisions and stalled decision-making that have impaired the effectiveness of the two national commissions reflect the wider divisions in American political life and should not be attributed to the commission model per se. As other case studies make clear, commissions can be designed and operate in an independent and impartial manner if they are sufficiently insulated against political pressures.

In the current condition of deadlock and stalled activities, the commissions are focused on the short term. However, there are some obvious medium- and longer-term issues that they must eventually confront. In the case of the FEC:

In the case of the EAC, it is facing a fight for its ongoing existence and must make the case that federal subsidies and support to state and local governments is legitimate and represents an ongoing need. Its most recent strategic plan emphasizes the need to communicate its activities and accomplishments to a wide range of stakeholders. Two other objectives are monitoring and reporting on the use of federal subsidies as well as building public confidence in its integrity by testing and certifying voting systems to improve accessibility and security.



Footnote 23 When the EC was established in 2000, the resolution passed by the House of Commons provided for a full-time chair whose salary would be increased each year by the same percentage increase granted to High Court judges.

Footnote 24 Despite the shift to part time, there would be no reduction in the annual remuneration (£150,000) paid to then chair Sam Younger (Committee on Standards in Public Life 2007, 16). The justification was that the transition to a new governance structure, the ongoing process of modernization of election laws and the changing practices of electoral competition would present him and his colleagues with serious challenges for the foreseeable future.

Footnote 25 As part of the government-wide austerity program, the EC reduced its staff levels from 131 full-time equivalents in March 2012 to approximately 125 in March 2013 (Electoral Commission 2013, 25).

Footnote 26 For example, in 1965, Congress passed the Voting Rights Act, which sought to prohibit racial discrimination in all elections. This was followed in 1993 by the National Voter Registration Act. Because these Acts were meant to apply to a large, diverse country, they were broadly worded to allow flexibility in how they were applied.

Footnote 27 Federal Register, Executive Order 13639 of March 28, 2013.

Footnote 28 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

Footnote 29 Buckley v. Valeo, 424 U.S. 1 (1976).

Footnote 30 For some numbers, see Franz 2009, 172.

Footnote 31 FECA operates in tandem with the Revenue Act, the Presidential Primary Matching Payment Act and the Campaign Act, all of which provide public funding for national elections.

Footnote 32 For more information on the FEC, go to www.fec.gov/.

Footnote 33 For a brief history up to 2006, see Sheppard 2007, 38–45.

Footnote 34 For a detailed legal analysis, see Seifried 2012, 10–11.

Footnote 35 See http://www.fec.gov/law/litigationrecent.shtml.

Footnote 36 Detailed information on these bodies can be found on the EAC website at www.eac.gov/.