Matthew Petersen might have made the best financial decision of his life when he was fifteen. For $1, he bought the Star ’85 Chicago Bulls basketball card team set—a bundle that included a Michael Jordan rookie card.
In 2016, that piece of cardboard is selling on eBay for more than $4,000. But Petersen, the new chairman of the Federal Election Commission, isn’t interested in selling his copy; he’s happy with it just where it is—displayed, along with the rest of his card collection, on the wall of his office.
Petersen, 45, is just weeks into his term as chairman of the FEC, but unlike his Democratic predecessor Ann Ravel, the Republican doesn’t have a stated interest in shaking up the agency, and he doesn’t think that’s such a bad thing.
“If at the end of the year we can look back and say we made a number of meaningful updates to our policies, forms and regulations, and we efficiently moved through our enforcement docket and our advisory opinion docket,” Petersen told C&E in an interview at his Washington office, “then I think we can look back on the year and say ‘That wasn’t a bad year.’”
No ambitious overhauls. No major changes. No 20-point plan. Petersen is just aiming for a year that’s not “bad.”
Petersen’s outlook differs sharply from his predecessor. During her tenure as chair, Ravel openly criticized the agency’s lack of productivity in regulating campaign finance, specifically with regard to the 2016 presidential election. She called the agency “worse than dysfunctional” in The New York Times and “probably comparable” to men’s nipples on The Daily Show, particularly criticizing her Republican colleagues for not believing in the role of the agency.
Petersen has been far less critical of how the agency operates, despite its reputation as one of the most dysfunctional bodies in D.C. The new chairman said he harbors no grand plans to tackle any of the “sexiest” issues during his time at the helm.
Perhaps his most ambitious aim is to establish a more coherent legal framework for the role of technology in campaign finance, and more specifically, text-message fundraising—something that’s long overdue as far as many campaign professionals are concerned.
In particular, Petersen said he wants to find a more hardened rule for disclaimer requirements with text messaging.
“You have character limits and there’s no way that you can actually put a disclaimer that’s compliant with our regulation on those texts,” he said. “Would those qualify for the impracticability exception under our regs?”
Petersen wants to find similar agreement on character-limited political ads on Google and Facebook. “How do our regulations, which were contemplated for a very different era of communication and very different technologies – we’re thinking about television ads and letters – apply to the new ways in which people actually communicate and receive information?”
Petersen hopes to form easily understandable guidelines for online contribution processing platforms that allow voters to search issues they care about and contribute money to candidates through such platforms. He noted that despite the number of advisory opinions on these issues in past years, they’ve yielded contradictory results. So rather than try to put together puzzle pieces that don’t fit, Petersen wants the agency to solidify rules for guidance.
Joining technology at the top of Petersen’s agenda are updated FEC forms, which are easier to navigate both for those reporting contributions and for the general public, along with continued updates to the agency’s website.
A Self-Styled Contrarian
Petersen’s attitude toward regulation dates back two decades to his time as an undergraduate at Brigham Young University.
“There was a certain conventional wisdom about campaign finance reform and soft money and so forth,” Petersen said, “and even though I wouldn’t consider myself a contrarian by nature, some of the slogans and catch phrases of the debate, I thought, proved to be a little bit less than satisfying.”
Conventional wisdom held that there was too much money in politics. Too much money compared to what? Petersen thought. What’s the basis of comparison?
Unsatisfied by the cries for campaign finance reform, Petersen said he dug deeper. He studied the Federalist Papers and the development of the Constitution and that hardened his position that speech used to elect officials is a core protection of the First Amendment.
After graduating from the University of Virginia School of Law in 1999, Petersen moved to Wiley Rein LLP and then to Capitol Hill, where he served as both counsel to the U.S. House of Representatives Administration Committee and chief counsel to the U.S. Senate Rules and Administration Committee, which have jurisdiction over campaign finance legislation. He joked that he became a campaign finance attorney to fund his “unending appetite for sports.” He was appointed to the commission by then-President George W. Bush in June, 2008.
Petersen said his seven years and counting at the FEC should be analyzed in the context of what’s happened in the larger campaign finance world. The agency has had to make sense of a campaign finance landscape that has been significantly altered by a number of court decisions, most notablyCitizens United v. FEC in 2010.
With the judiciary, the legislature and academics divided on campaign contributions, Petersen said it’s no surprise the regulatory agency is deeply split, too.
“I think there’s some wisdom in the way that the commission was structured,” he said. “The FEC is not designed to be efficient. It’s designed to ensure that there isn’t partisan enforcement of campaign finance laws.”
Agency gridlock, thanks to disagreements over the interpretation of the law and the scope of court decisions, do not make the FEC dysfunctional in Petersen’s eyes; instead, he argued that it’s reflective of the larger debate on campaign finance in all branches of government, both at the federal and state level. Petersen’s definition of true dysfunction: if the agency couldn’t manage to operate its website or provide disclosure reports to the public in a timely manner.
“I think he has set the bar amazingly low,” said Lawrence M. Noble, general counsel at the Campaign Legal Center, former president and CEO of Americans for Campaign Reform, and former general counsel at the FEC. “Saying that you’re not dysfunctional just because you have a website and you post records that are filed with the FEC is missing most of what the FEC is about.
“What they’re missing,” Noble continued, “is that their major goal is to ensure that the public has non-partisan enforcement of the campaign finance laws and that the laws are enforced. And the agency is not being functional at all in that area.”
Critics continue to point to flourishing Super PACs and argue that there still isn’t enough attention focused on the coordination ban, even following the first successful prosecution of a political consultant for violating the ban.
“An agency shooting for a ‘not bad year’ is cheating the public,” Noble argued. “A change in attitude among some of the commissioners would go very far to change the agency.”
But Petersen said he bases decisions on his interpretation of the law, rather than on public sentiment toward campaign finance or media criticism of the agency. While Petersen doesn’t think money is speech, “money is essential to speech,” he said, “just like the exercise of any constitutional right.”
For Petersen, the more sweeping actions reformers hope for are outside of the agency’s jurisdiction unless Congress passes more concrete guidance.
“(Congress) creates the skeleton and we put a little bit of the flesh on the bones of that skeleton,” he said. “We can’t create a whole new body of law.”
Working Within the FEC’s ‘Limits’
In an agency that has come to be defined by ties, the reality is that the chairman doesn’t hold much weight beyond setting the agenda and presiding over meetings. Unlike the White House-appointed chairman of the Federal Communication Commission, the head of the FEC does not serve as a tie-breaking vote. And for Petersen, that reality defines how he sees his role as chair. The best a chairman can hope for, he said, is to set the right tone for commissioners to work together as productively and agreeably as possible.
“After seven and a half years, I know where the fault lines are,” Petersen said. “I know what sorts of issues have the best chance of getting some movement and what sorts of initiatives are likely to run into some problems.”
His partner running the agency is on the same page. Vice Chairman Steven Walther, an independent who counts as a Democratic commissioner, said the FEC simply won’t find agreement on the toughest issues.
“Realistically,” he said, “to try to adopt something major on the eve of the election wouldn’t make a lot of sense.”
But Petersen and Walther—who are grateful to be working together again (Petersen served as vice chairman in 2009, Walther as chairman) and who share “western roots” (Petersen is from Utah, Walther from neighboring Nevada)—expressed optimism that the agency can be productive within the realm of possibility.
Petersen’s overarching goal is to move as efficiently through their docket of enforcement matters as possible and to address a law that would allow the agency to pay the general counsel more. Currently, the counsel’s salary is set by statute at $147,000, which can be less than his subordinates’ wages.
To Petersen, the FEC is an “agency without a friend.” When the FEC acts too aggressively, it’s attacked from the right. When it acts too passively, it’s been attacked from the left.
“In some ways, the FEC is kind of like what Winston Churchill said about democracy,” Petersen said. “Democracy is the worst form of government except any other form that’s been tried. Likewise, the structure of the FEC is the worst structure except for any other potential configuration.”