A Clarification on the McCain-Feingold FEC Replacement Proposal

In this post, I stated that under the proposed new FEA, appointed commissioners "could not have served on the FEC." As a reader informed me, this is not accurate. Only those FEC commissioners who have been subject to term limits (i.e., more recent FEC commissioners) would be ineligible to serve. (UPDATE: CCP calls it "the Potter exception".) Here is the relevant provision:

`SEC. 352. COMPOSITION OF THE FEDERAL ELECTION ADMINISTRATION.

``(a) In General.--The Administration shall be composed of 3 members, 1 of whom shall serve as the Chair of the Administration. No member of the Administration shall--

``(1) be affiliated with the same political party as any other member of the Administration while serving as a member of the Administration; or

``(2) have been affiliated with the same political party as any other member of the Administration at any time during the 5-year period ending on the date on which such individual is nominated to be a member of the Administration.

``(b) Appointment.--

``(1) IN GENERAL.--Each member of the Administration shall be appointed by the President, by and with the advice and consent of the Senate.

``(2) CHAIR.--The President shall, at the time of nomination of the first 3 members of the Administration, designate 1 of the 3 to serve as the Chair. Any individual appointed to succeed, or to fill the unexpired term of, that member (or any member succeeding that member) shall serve as the Chair.

``(3) QUALIFICATIONS.--

``(A) An individual who is appointed under paragraph (1) shall--

``(i) possess demonstrated integrity, independence, and public credibility; and

``(ii) shall have not less than 5 years professional experience in law enforcement, including such experience gained--

``(I) in service as a member of the judiciary;

``(II) as a member or an employee of a Federal, State, or local campaign finance or ethics enforcement agency; or

``(III) as a law enforcement official in a Federal or State enforcement agency or office.

``(B) An individual may not be appointed under paragraph (1) if--

``(i) such individual is serving or has served as a member of the Federal Election Commission subject to a term limit; or

``(ii) at any time during the 4-year period ending on the date of the nomination of such individual, the individual was--

``(I) a candidate, an employee of a candidate, or an attorney for a candidate;

``(II) an elected officeholder, an employee of an elected officeholder, or an attorney for an elected officeholder;

``(III) an officer or employee of a political party or an attorney for a political party; or

``(IV) employed in a position in the executive branch of the Government of a confidential or policy-determining character under Schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.

Posted by Rick Hasen at August 11, 2009 10:40 AM