The Senate Ethics Committee’s report accusing John Ensign of violating federal and campaign-finance laws doesn’t just reflect poorly on the former Nevada senator. It also highlights lingering questions about the Federal Election Commission’s ability to do its job.
Among the investigation’s findings was the revelation that Ensign, who resigned last month, lied to the FEC by claiming that a $96,000 payment his affluent parents made to Cynthia and Doug Hampton–the former aide with whom he had an affair, and her husband, also an Ensign staffer–was a “gift” rather than a severance package. The Ethics Committee, citing “substantial credible evidence” that Ensign had violated campaign-finance regulations, referred the matter back to the FEC for future inquiry.
It’s an open question whether the attention the lurid saga has garnered will make the FEC more responsive this time around. In the summer of 2009, the commission received a complaint about a payment Ensign made to the Hampton family. The complaint, filed by Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit watchdog organization, claimed that the money constituted a severance payment to Cynthia Hampton, which would violate campaign-finance regulations. CREW asked the FEC to investigate.
In March 2010, the FEC’s general counsel’s office filed its report. It argued there was “reason to believe” the payment was severance, that Ensign’s parents and treasurer had given and received contributions that exceeded the legal limit, and that the Senator’s campaign and PAC had failed to disclose it. The report did not recommend taking action against Ensign himself. But it argued,”We need to investigate the circumstances of this payment.” The document was signed by three attorneys.
The FEC ignored the advice. Eight months later, it voted 5-0 to dismiss the complaint and close the file on Ensign. (One member of the six-person commission, Steven Walther, recused himself.) “The sworn affidavits submitted by the Ensigns constitute the only direct evidence of their intent in making this payment. As a practical matter, it is doubtful that an investigation would produce any additional evidence that would contradict or outweigh this testimony,” wrote the commissioners. “Testimony from other parties, such as the Hamptons, would be unlikely to shed any light on the Ensigns’ intent. It is similarly unlikely that an investigation would uncover circumstantial evidence–such as a writing or statement by the Ensigns to a third party–that would contradict or outweigh the evidence already before the committee. Accordingly, we conclude that an investigation in this matter is unwarranted and would not be an efficient use of Commission resources.”
In a 22-month investigation that included interviews with 72 witnesses, the Ethics Committee produced reams of evidence that contradict Ensign’s claims, according to its report. On the central question of the payment’s intent, at least four witnesses told Ethics Committee investigators that the money was for severance; one reportedly said Ensign told him, “I’m going to give [Doug Hampton] as much severance as possible.” Ensign’s initial drafts of the statement admitting the affair referring to the gift as severance, according to the document; the language was changed when Ensign was advised that the phrasing could expose him to criminal charges. “As usual, when confronted with evidence of campaign finance violations, the FEC did exactly nothing,” CREW Executive Director Melanie Sloan said then.
The question is: Why didn’t the FEC act? In a blistering March 15, 2011, letter to President Obama, eight watchdog organizations (including CREW) called the FEC “dysfunctional” and charged it with “spectacularly failing to meet its statutory responsibilities.” The writers chalked up part of the problem to the FEC’s appointment process. Presidents have the power to select nominees for the six-member commission, which by law is equally balanced between Republicans and Democrats. But the tradition is to tap noncontroversial loyalists. “We call on you to discard the past practice of allowing party leaders in Congress, in essence, to name the FEC Commissioners, the result of which all too often has been Commissioners who either serve partisan interests or are ideologically opposed to the laws,” the letter implores Obama, who will have the opportunity to remake the commission by naming five new members. Still, campaign-finance experts caution that sweeping change is unlikely. The FEC declined comment for this story.
Campaign-finance reform advocates have long dismissed the FEC as a feckless body with little interest in or ability to carry out its oversight mission. To critics, the Ensign investigation is another stain on that already spotty record.