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Statement of David M. Mason
Nominee, Federal Election Commission
Senate Committee on Rules
July 21, 1998
Senator Warner, Senator Ford and members of the committee, I am deeply honored to appear before you today in connection with my nomination to be a Member of the Federal Election Commission.
At the outset I would like to acknowledge the presence of most of my family, my parents John and Frances, my wife Margaret, my six children, and my brother and sister-in-law. I want to thank my wife an my parents especially for the support they have given me in every task and at every time in my life.
I would like to thank also the Chairman of the committee who was one of my first political mentors, who demonstrated vividly in his own actions at an especially critical time the virtue of magnanimity. He showed me, among many things, that as important and serious as the business of politics and government are, there can and should be moments of pleasure, even fun. And he demonstrated how personal civility and grace can help solve difficult and contentious disputes. I certainly hope to emulate these virtues should the Senate see fit to confirm my nomination.
I should lastly thank the Majority Leader, who is also a former employer and mentor, and the junior Senator from Kentucky for their support and guidance as I sought this appointment.
The task of self-government is central to the foundation and continuing existence of the United States. In most instances, Americans govern themselves through elections. Thus, conducting and regulating elections is the most fundamental and necessary task for the government of a free people. The legitimacy of every other action of the government relies upon the basis of free, fair and honest elections. The Federal Election Commission plays a critical role in this process by regulating the financing of federal elections in order to prevent corruption or the appearance of corruption. Financial corruption in fact, and its appearance in faith, undermines and ultimately can destroy self government. Its prevention and punishment is as important as anything else the government does. Thus, I am honored, and even humbled by the trust represented by my nomination.
It has been a great privilege for me to have spent now twenty years in public service and public policy: in campaigns, as a political party officer, as a staffer in the Senate and House, as an executive branch official, and in studying and commenting upon the public policy process. From all of these experiences I hope to bring something of value to the considerations and operations of the FEC.
I know that every Member of this committee places a faithful adherence to the Constitution foremost among their duties as government officials, and I want to assure you that the Constitution, especially the First Amendment, will be the lodestone and guide star for my decisions at the Commission. I take that duty to the Constitution to apply not only in cases of direct orders and interpretations of federal courts, but also to my own best judgment in any matter that comes before the Commission.
Secondmost in the hierarchy of obligations as a member of the Federal Election Commission must be compliance with Congressional directives and intent. The job of the FEC, as with all regulatory agencies, is to execute the law, not to make it. Assuming I am confirmed, I will take it as my duty to execute and enforce the law exactly and only as passed by Congress and approved by the President.
In preparing for potential service as a Commissioner at the FEC, I have heard two general concerns about the agencys operations: one, the pace of action, particularly on enforcement matters; and, two, the frequency with which agency regulations or enforcement decisions are overturned by federal courts. While I am not in a position to confirm the validity of these complaints or to make a judgment about their causes, these concerns have been raised with sufficient frequency that I can highlight them as issues on which I will focus intently if confirmed.
In addition to examining these matters in the context of current FEC procedures, I have already begun, on a very preliminary basis, to discuss with Members of other independent regulatory agencies how they handle similar problems. The Securities and Exchange Commission, for instance, is similar to the FEC in enforcing a regulatory regime based principally on public disclosure. The International Trade Commission has in common with the FEC a six-member structure divided based on partisan affiliation, along with a rotating, and consequently weak, chairmanship. The Federal Communications Commission shares challenges of regulating in areas protected by the First Amendment. The Federal Trade Commission, like the FEC, has concurrent jurisdiction with the Department of Justice in many cases. By comparing procedures and practices at these and other regulatory agencies, we may be able to come up with promising approaches for the Federal Election Commission.
Current Members of the Commission have themselves raised the volume and backlog of enforcement matters as a concern, and have recommended various steps to address the problem. One approach which appears particularly promising is the adoption of a traffic-ticket-like schedule of fines for minor violations. Because such a system would likely require legislation to be effective, I would hope to report back to this Committee on that concept after I have had the opportunity to review pending enforcement cases.
The Commission has recently dismissed numerous stale or low priority enforcement cases in batches, an approach which no one finds fully satisfactory. At least one recent court decision challenges the adequacy of the Commissions dismissal procedures. Most incumbent commissioners have cited a lack of adequate personnel and other resources as requiring difficult decisions in this regard, while many outside critics have questioned whether there may be problems with the Commissions enforcement priority system, or with its investigative procedures. Here again, I intend to attempt to draw some conclusions about this problem in fairly short order, and to work with my fellow Commissioners to resolve them, or to report back to this Committee and its House counterpart if legislation appears necessary.
As for the judicial record, it would be my hope to have the commission focus on "meat and potatoes" enforcement cases: to address the most clear and obvious violations of federal election laws in first order. Particularly in view of the First Amendment issues involved in many FEC matters, I do not believe the Commission should be overly aggressive in pushing novel legal theories. Rather, we should err on the side of free discussion, especially when activities are disclosed. In fact, seeking ways to expand and improve disclosure may be more effective in improving enforcement than bringing lawsuits after the fact.
In the areas of coordination and issue advocacy in particular, there are already a number of judicial actions pending which may provide the Commission with some more definitive guidance even within the next year.
The Commission has also already raised concerns about the possibility that presidential candidates in the year 2000 may encounter delays in matching fund payments given projected balances in the campaign fund. This is another area in which legislation may well be necessary, I know the Commission will be communicating with the Congress about this issue on a continuing basis.
Finally, it is my hope as a Commissioner to explore some ways to address the very legitimate public concern about elections, their effectiveness in directing government policy, and about the role of money in politics. It is my view that recent debates about political reform have been too narrowly focused on financing, and that whatever changes may be effected by changing financing rules will not fully address the broad concerns about our political system and how it works. While the FECs regulatory responsibilities are nearly exclusively in the areas of financing and financial reporting, I hope to participate in broader discussions about how our political system operates in hopes of better informing the public and of encouraging more vigorous participation in political life.