Fair Election Practices Committee Should Call it a Day

It Drives Negative Campaign Advertising

Democrats would control the Monroe County Legislature today, were it not for the Fair Election Practices Committee.

Got your attention?

Democrats would have held the legislative majority for the past four years, would have controlled the 2011 redistricting, and might have been able to make governing so impossible for Maggie Brooks that maybe a Democratic candidate could have won this year.

The last link in our colleague Lucy's comment to yesterday's posting brought this to mind.

In 2007, remember, Democrats came within one seat of winning control of the County Legislature.   The GOP's closest win that year came in the Pittsford-East Rochester district.   Republican Anthony Daniele won the open seat in a squeaker, by fewer than 250 votes.   In an election so close, it always can be said that, had merely one factor been different, so might have been the outcome.

In that election, a factor Republicans hammered home was that Democratic candidate Ted Nixon had received an adverse ruling from the FEPC.   Ironically, the ruling came down not in 2007, but two years before.   It came very late in the campaign, but to Republicans it was like money in the bank.   They expected Nixon to run again in 2007, as he did.   They hammered it, and the Democrat lost by a hairsbreadth.

Costing Democrats an election or control of a government won't cause Mustard Street to call for abolishing the institution that did it.   But 2007 represents a pretty powerful demonstration of the difference the Fair Election Practices Committee can make -- and has, in our opinion.

The FEPC is well intentioned.   It can make mistakes, but by every account it is scrupulously fair in its deliberations and rulings.

Here's the problem:   the League of Women Voters and the Interfaith Council established the FEPC to help prevent negative campaign advertising.   Yet its decisions provide a significant source of negative advertising in Rochester-area elections.

Let the FEPC find a candidate in violation of its Fair Campaign Pledge -- however innocently, unintentionally or trivially -- and right away the opposition has on TV or in a mailing a depiction of the candidate behind bars, the word "GUILTY" stamped across his face, reinforced by vocabulary connoting a criminal conviction.   These decisions drive a substantial proportion of negative campaign material in Monroe County elections.   A classic example of the law of unintended consequences, creating precisely the kind of advertising the FEPC seeks to prevent.

Here's another problem.   Pure though the intentions of the League of Women Voters and the Interfaith Alliance may be -- who gave them the franchise to set themselves up as arbiters of what's fair in a campaign?

And lest we consider them completely pure, remember that, behind the FEPC's ability to function as it does, is the implied coercive threat of negative advertising.   The candidate who declines its summons to sign can expect publicity from the FEPC, and ads from the opposition, saying "Candidate X wouldn't sign the Fair Campaign Pledge."

The FEPC even claims jurisdiction over candidates who haven't signed the pledge, to decide whether they broke a pledge they never made!

Across the country and the democratic world, democracies seem able to function without similar bodies involved in their elections.   Voters weigh claims and counterclaims by competing candidates and make their own evaluations of credibility.   This process is at the core of the concept of a marketplace of ideas freely expressed.

Suppose some other civic groups got together with their own Fair Campaign Pledge for candidates to sign, and set up their own hearing panel.   Would it have any less claim to moral authority than the FEPC?   We don't think so.

The FEPC should recognize its significant contribution to negative campaign advertising and pack up.

If it won't, all candidates of both parties should decline to sign the "Fair Campaign Pledge."

If the FEPC persists, our major political parties should reach a concordat whereby none of their candidates signs.   Such a splendid opportunity for bipartisanship.