McGahn and his two GOP colleagues on the Commission have blocked virtually all enforcement and rejected efforts to provide greater transparency. A former ethics adviser to disgraced former Congressman Tom Delay (R-TX), McGahn II even admitted in 2011, “I’m not enforcing the law as Congress passed it… I plead guilty as charged,” arguing that he instead enforced the law based on his own interpretation of what the Supreme Court would want him to do. All three, along with the two Democratic Commissioners, are continuing to serve expired terms until their replacements are in place. President Obama has nominated candidates to replace McGahn and to fill Bauerly’s vacancy, but has not yet proposed new names for the other four seats, three of which are occupied by commissioners whose terms have been expired since April 2011 or earlier.
Though President Obama had a rare opportunity last week to fix the Federal Election Commission with one stroke of the pen, his decision not to use it has left the bitterly divided agency with this three-to-two Republican majority until the Senate acts or until McGahn voluntarily departs.
Seizing one last chance to make mischief, McGahn now wants to end a decades-long policy of routinely sharing information about potential criminal campaign finance law violations with the U.S. Department of Justice. He also wants to take away the FEC staff investigators’ power to conduct preliminary inquiries. The FEC’s general counsel, who left the agency Friday, wrote before his departure that McGahn’s proposals “would put the Commission out of step with other independent federal agencies, while resulting in no offsetting benefits to the Commission or the political community,” and “would open up the Commission to charges of obstruction based on rank partisanship.”
According to the Boston Globe, “McGahn believes the commissioners themselves should assert greater control over investigations, as well as decide when the agency shares information with the Department of Justice.” But with McGahn’s unprecedented efforts to block enforcement by deadlocking votes — even on routine matters — such a move would virtually guarantee the already toothless agency would become gumless as well.