You know, we really need to toss this "designed to fail" phrase out the window. When people say the FEC or the EAC are designed to fail, what they really seem to mean is that they are not designed to accomplish every thing that person would like to see accomplished at a pace that person would like. Presumably, people who agree with the speaker did not "design the system to fail" (though it is possible that the system was poorly designed, but that is hardly the same thing). Rather, it is more likely that the system was designed to accommodate various interests and concerns.
For example, if you believe, as many members of the reform community seem to, that the FEC is supposed to be an agency with a broad mandate to roam the American political landscape, handing out stiff penalties before the election (i.e., usually without adequate time for due process) on a sort of "I know corruption when I see it" and an "everybody knows" standard of political influence, then it's design makes it unlikely to ever succeed. If, on the other hand, one sees the FEC as an agency established to deal with a relatively narrow problem, while trying to respect for the Constitutional values and interests involved, with some check on the ability of the ruling party to use it as a political weapon, it's design and effectiveness look a whole lot better (the problem here becomes not whether the agency was designed to fail, but whether the mission is one that can ever be accomplished).
Similarly, if you assume that the job of the EAC was to establish a mechanism to funnel federal financial support to the states to upgrade their election equipment and processes in a short period of time, again with checks on the ability of the majority in power to use the agency for political gain against the minority, and without usurping the traditional role of the states in running elections, then the EAC not only looks pretty successful, but there is an argument to be made that it may be time for it to close up shop.
This constant use of the "designed to fail" language, frequently used by the "reform community" in regard to the FEC, is based on the assumptions that government is not about balancing interests (including concern for due process, First Amendment rights, not squelching political participation through excessive regulation, and attempting to create a structure that prevents partisan abuse of the process), that bills are not passed through compromise, and that implementing one particular vision - the "reformist" vision that has, for decades, dominated the narrative of campaign finance - is the only legitimate function of regulation.
But by this measure of the "designed to fail" yardstick so blithely and regularly applied to the FEC (and sometimes the EAC), every government agency is "designed to fail," since every government agency faces various checks and balances, opportunities for comment by interests opposed to those invoking the term "designed to fail" at any given moment, and due process constraints on its enforcement power.
Most remarkable is that on a list where conversations frequently debate the problem of partisan enforcement and rulemaking (think redistricting, voter ID laws, enforcement practices at the Voting Rights Division of DOJ, the text and interpretation of the VRA, ballot access) so many people seem willing to ignore this problem when it comes to the FEC or the EAC - suddenly, the checks on partisan excess mean the system is "designed to fail."
By this standard, I think supporters of photo voter ID at the polls have a great case for arguing that the American legislative system must be designed to fail, or otherwise, given the broad popular support, pretty much every state would have a law at least as tough as Indiana's. But the reality, fortunately, is that the mere fact that we lose a lot of political battles doesn't mean that the system is "designed to fail" any more than it means that the law is not being enforced.
Rather than being "designed to fail," perhaps the FEC and the EAC are designed to succeed - and those who use contrary terminology simply do not understand or have not adequately considered the full range of issues involved.
I've expressed frustrations at times with the EAC, and from a purely intellectual perspective, wondered whether the agency was designed to fail. (I remember in a conference at Brooking/AEI a few years ago, we had a spirited discussion with Tom Mann and Norm Ornstein about the early years of the Federal Election Commission and how it compared to the EAC. I still wonder whether the authors of HAVA had failure in mind)
However, I can't echo Rick's sentiments that no one would miss the agency. American election administration has improved dramatically since 2000, and Federal requirements for the use of HAVA funds, administered by the EAC, should receive a lot of credit. Perhaps the agency would not be missed when HAVA funds run out, but let's not understate the impact of HAVA and the agency's role in administering and overseeing these funds.
I'd be interested in hearing others' opinions about the Voluntary Voting Systems Guidelines, but the impression that the VVSG, while slow, has provided a set of regulatory guidelines and technical specifications that has helped guide the states when adopting new election technology. It would surely be missed if the VVSG was no longer updated, and states and local jurisdictions were once again completely on their own. This seems particularly important in a period when the election technology industry is in a state of great uncertainty.
Finally, from my own perch as a political scientist, it would be a tremendous loss if the Election Administration and Election Day Survey, which has finally stabilized and is being used to great advantage by advocates, analysts, and increasingly academics, were to disappear. Yes, there have been serious bumps in the road in developing and administering this instrument, but recall prior to the EAC's survey, there was no single source for information on a wide array of information about the performance and administration of American elections. I would hate to go backwards and once again have 50 states and 10,000 jurisdictions reporting information with different details, using different terms, and with differing levels of accuracy.
I would hope that Congress would continue to fund this instrument regardless of what happens to the EAC.
---
Paul Gronke Ph: 503-517-7393
Fax: 734-661-0801
Director, Early Voting Information Center
Professor, Reed College
3203 SE Woodstock Blvd.
Portland OR 97202
EVIC: http://earlyvoting.net