If you were a Congressman in the early 1970s, you were probably scared of the late Rep. Wayne Hays (D-Ohio). You definitely hated him.
Many said that the bossy Ohioan was more powerful than the Speaker of the House, thanks to his “tyrannical” rule as chair of the Committee on House Administration, typically a minor position with administrative tasks rather than anything wide-reaching. As former Rep. Bud Shuster (R-Pa.) said, “Few disagreed that he stood in a class by himself as the meanest man in the House.”
Many others said similar castigations off the record. Hays fiddled with rules minor and major to be called by his colleagues “the real czar of the House” — or more positively, “devoted to duty.” He eliminated linen cloths from the staff dining room, banned seats for the elevator operators and more than doubled the price of a haircut at House barbershops. Further, Hays threatened to withhold paychecks and eliminate breakfast from the House cafeteria.
“I didn’t come to Washington to make friends and influence people, just to influence people,” Hays told the Washington Star in 1971. “Congress does a lot of talking about the economy but it must start at home.”
Hays started to look beyond fiddling with Beltway benefits. In 1971, he assumed control of the new House computer system, a program that would cost more than $9 million today.
Above all, his dominance in Congress has had lasting effects on how elections are monitored today. Hays was in the height of his power when campaign finance reform became a serious issue. When these laws reached his committee, he appeared to repeatedly undercut disclosure and other key provisions in these laws — and succeeded in joint sessions between the House and Senate to pass them.
Many of those provisions remain more than four decades later in spite of numerous amendments, rulings, technological overhauls and philosophical about-faces in how elections should be conducted and funded.
One key area is the Federal Election Commission’s bipartisan composition: It has six members, no more than three of each party. That makes deadlocks likely to occur, resulting in lack of action. Nearly a quarter of proposed enforcement actions were split votes in 2013. Because the votes were tied, 37 percent of proposed audits did not occur in 2012.
The remaining few who are familiar with Hays’ reign in Congress from 1949 to 1976 assert that the Ohio congressman is responsible for this flaw. That includes the late Georgetown Law professor emeritus Jack Murphy, who served as the first General Counsel of the Federal Election Commission and studied campaign finance.
“He couldn’t stop the commission, but he could emasculate it by giving it this bipartisan identity, which was designed to neutralize the commission on any difficult issue,” Murphy said in an interview with IRW in 2015.
IRW’s exhaustive study of the legislative history and floor debates of the Federal Election Campaign Act of 1971 and amendments to it in 1974, as well as a review of the Wayne L. Hays’ Papers 1941-1989 at the University of Ohio in Athens, Ohio, bolsters that claim. More than 3,000 archival pages indicate that the even-numbered composition was part of negotiation by activist congressmen who wanted an independent commission, even a flawed one, rather than none at all.
The Hill of four decades ago
Following Watergate, legislators were clamoring to right the government’s image. One of their biggest targets was election campaign reform. “Most, and probably all, of the serious problems facing this country today have their roots in the way we finance the campaigns in which the nation’s highest official are elected,” said Sen. Ted Kennedy (D – Mass.) on March 26, 1974.
Legislators from both sides of the aisle took a special interest in the founding of an independent commission. Particularly involved were Republicans like Rep. Bill Frenzel of Minnesota and Senators James Pearson of Kansas and Winston Prouty of Vermont. Their leadership may surprise those who know that conservatives today largely push for less government interference in campaign funding.
Our study begins in 1971, when Congress passed the Federal Election Campaign Act. It served to replace the Anti-Corruption Act, passed in 1927, as the legislation to regulate elections. Along with addressing donation and spending ceilings, TV advertisements, public financing and a host of other issues, some legislators wanted to enforce disclosure of all campaign spending and donation as well as replace the current watchdogs of campaign finance. It was also generally agreed upon that the Secretary of the Senate and the Clerk of House, who were then charged with ensuring that campaigns were law-abiding, were inept.
Their opinion was characterized by a New York Times editorial published in April 27, 1971: “These Congressional employees have not enforced the existing law; they cannot be expected to do any better with a new law.”
Four years prior, Senators Joseph Clark (D-Pa.) and Hugh Scott (R-Pa.) tried to move this responsibility to the Comptroller General, who was not only seen as more qualified, but also more separate from the House and Senate. They theorized that a custodian with greater distance from Congress would better monitor how hundreds of legislators were funding their federal elections.
The FECA was drafted in the Senate Committee on Rules and Administration before being presented to the Senate floor, where it was debated for two and a half weeks. On the first day, Sen. James Pearson (R-Kan.) suggested an odd-numbered commission of five voting members appointed by the president.
A contingency of Democrats, particularly Sen. Howard Cannon (D-Nev.), disagreed. They expressed fears that this commission would unfairly attack Congress and that it would be unneeded bureaucracy. In particular, they pointed out the unneeded financial strain of a full-time commission when elections only occur every two years. However, the same legislators did agree with expanding disclosure laws and a host of other laws to reform campaign spending.
Days before debate on the Senate floor ended, Republicans again mentioned the commission. Some mentioned an even-numbered commission, and others an odd. Notably, nearly every single federal commission has five members, not more than three of which can be of the same political party. These include the Federal Communication Commission; Security and Exchange Commission; Federal Trade Commission; Federal Energy Regulatory Commission; and the Federal Maritime Commission.
Aug. 3, 1971, is the sole time in this study that any legislators address having an even- or odd-numbered number of commissioners. Sen. John Pastore (D-R.I.) proposes an idea in which he is joined by Sen. Hugh Scott (R-Pa.) to have a six-, rather than five-person organization.
“You find, when you get five people, and you do not have them equally represented on both sides … it is usually good to have an even split and you need not worry over their lack of decision for the simple reason that if you get the caliber of people the senator from Pennsylvania (Scott) talks about, any abuses will be reported, and it removes that suspicion,” Pastore said.
Pearson was amenable, and even said that an even number was necessary considering the political nature of the commission.
“The setting up of a commission in most instances requires an odd number for decision-making, but here, to accentuate the bipartisan nature or nonpartisan nature, if you will, I would have no objection at all to making this a six-member commission,” Pearson said.
Rather, he was concerned above all with founding the commission — and that it would be removed from Congress. “What I seek to do above everything else, is to find some source of independence from Congress, form the executive brand, and from politics. If the senator from Pennsylvania would so modify his amendment by changing the word five to six, I would be glad to accept both the suggestion.”
It’s not certain where more discussion of exact numbers took place. It may have been decided behind closed doors. Many of those involved in that decision have died, so the nature of that discussion is lost to history. It was not contentious enough to be addressed on the floor as the countless other issues raised during these debates. Those in favor of a commission were primarily concerned with the commission’s existence; the issue of five or six or seven voting members was not primary.
How Pearson and Pastore discuss it, though, suggests that Pearson bowed to Pastore’s suggestion of an even number, despite its pitfalls, simply to have a commission in existence.
Ultimately, the Senate bill outlined an FEC with five commissioners, not more than three of which were allowed to be from the same party.
The draft from the House Committee was much different. Hays’ committee wanted to essentially expand the current form of regulation in which the Secretary of the Senate and Clerk of the House acted as the clearing house for campaign documents. Hays wanted to also incorporate the Comptroller General to be responsible for presidential elections.
It was commonly understood that the secretary and clerk were not excellent at these jobs — it was jokingly ridiculed in the papers of record and on the legislative floor. They were poor at finding and reporting violations of campaign law, in part because it would result in them essentially tattling on their employers.
As Frenzel of Minnesota saw it, “This is tantamount to putting the fox in charge of the chicken coop.”
The bill was discussed on House floor as “the Hays bill.” When the Senate’s committee discussed their equivalent, they simply called it the Committee bill. It’s clear who ran the show in the House’s committee.
Hays proposed dropping spending limits to a point where some accused him of offering an incumbents’ bill. The limits were so utterly low that it was argued newcomers would not be able to communicate or advertise to voters. Furthermore, violating any portion of the act could result in a year in federal prison along with a fine up to $1,000 — more than $6,000 in today’s dollars. On the other hand, it was only required to file campaign finance information with the federal government twice — rather than the quarterly requirement prescribed today.
Karl Sandstrom, senior counsel at Perkins Coie, said in a 2016 interview with IRW that Hays was “somewhat” responsible for the current structure. Sandstrom served as a Democratic commissioner on the FEC from 1998 to 2002.
“Wayne was not enthusiastic, let’s say,” Sandstrom said with a smile. “Wayne Hays didn’t want to have many people looking over his shoulder probably because of the Elizabeth Ray scandal.” Ray was the woman who told The Washington Post in May 1976 that she was paid $14,000 a year to be Hays’ mistress.
But on the House floor, Hays rejected the FEC based on the Constitution and common sense. A commission would monitor the legislative branch, despite being part of the executive branch. He argued this would violate constitutional law that maintains separation of powers.
Hays even suggested that the press would take care of ensuring politicians were not skimping on campaign requirements, thanks to full disclosure laws. “You make a report and have it accessible.”
Other politicians challenged him on the concept. Rep. Charles Vanik (D – Ohio) said, “It is inconceivable to me that an employee is going to be terribly aggressive in enforcing laws against his boss.” Legislators from both sides of the aisle said his policies would restrict political activity due to their harsh requirements, though they were outweighed by nearly nonexistent enforcement.
Still, the majority voted in Hays’ favor. He then won out both in the House and during bicameral sessions on nearly every topic, including the supervisory section. The secretary and clerk would continue to police election funding, along with the comptroller general for presidential elections.
Senators were nonplussed by what they saw. Some demanded more time, more negotiation, but Pastore of Rhode Island, and the head of the Committee on Commerce, asked for appeasement. “Under the circumstances the conferees did what I would term an excellent job,” he lamented. “The House was absolutely adamant.”
After Watergate, a new need for supervision
Hays and those complicit in his fiddling couldn’t reject a commission in 1974, when Congress proposed amendments to the Federal Election Campaign Act of 1971. In the three years since they had passed it, President Richard Nixon and 69 of his closest aides had been impeached for a slew of fraudulent acts.
The Senate Committee on Rules and Administration released its draft of the new amendments on February 21, 1974, three months after Nixon declared to the American public that he was “not a crook.” They felt that they were charged with renewing the public’s view of the federal government.
The proposed commission had seven voting members, with the Comptroller General serving as well without the right to vote. This odd-numbered organization not only would have avoided the voting deadlocks we see today, but would also have a nonpartisan member without the right to vote to clear up disputes. Scholars such as Sandstrom note that a major issue with the FEC is the lack of a strong single chair.
“Almost every commission has an odd number to avoid the structural problems,” said Sandstrom. “Almost every agency has a strong chair. The FEC’s chair is no different than any other commissioner other than having responsibility for scheduling meetings.”
Darryl Wold, who served on the commission with Sandstrom, is now retired from private law practice in the field of political law. Wold told IRW that Congress intentionally structured the FEC to prevent it from being dominated by either political party. Many federal agencies, he said, can have a partisan majority and a chair appointed by the president, and are expected to reflect the president’s policy views, but Congress deliberately did not want that potential partisanship in an agency that regulates federal elections.
“(Most) agencies will generally follow the agenda of the president of the time. Congress deliberately did not want that,” Wold said. He added that the FEC has benefited from its nonpartisan structure in terms of its credibility and general acceptance of its decisions.
Still, what the Senate wanted in 1971 may have skewed to the president’s desires. Two would be appointed by the Senate, two from the House, and three by the president. There had to be two members of each party nominated from the Congress. That could have resulted in as many as five out of seven commissioners being Democrat or Republican.
That would perhaps produce a lopsided commission, but it didn’t receive much attention in Senate discussions. Senators were complicit in the formation of a commission, and didn’t appear to be deeply invested in the composition. Instead, the most contentious debates concerned public financing of campaigns.
Until Hays got involved. Then, the voting composition of the Commission became even-numbered. He also dubbed it the “Board of Supervisory Officers.” There would be four commissioners: two of each party appointed by the President of the Senate and two of each party appointed by the Speaker of the House. The Comptroller General, Clerk of the House and Secretary of Senate would serve as nonvoting members.
On top of that, the House and Senate Committee on Rules and Administration would have final say on any rulings by this commission. That kept election financing within the realm of Congress, and often subject to Hays’ direct approval.
Frenzel of Minnesota again led the charge for establishing an independent commission. Of Hays’ latest creation, he noted, “The Congress has a stranglehold on enforcement and supervision of its own elections. Not only is the fox in charge of the chicken coop, he is living in the hen house and managing the farm.”
And yet, he never protested the even-numbered composition. His idea, promulgated in a bipartisan amendment with Rep. Dante Fascell (D-Fla.), for six commissioners remains the structure today.
It’s unclear what happened. They wanted to add a few more voting members, and it just ended up being six. If it was considered problematic or suspect to party politics, wouldn’t it have merited more discussion on the House floor?
It’s possible, too, that he changed it to an even number to appease others in order for it to be in existence at all. The debate between Pastore and Pearson suggests that; the latter simply wanted to establish a commission. If it had to be a problematic even number, so be it.
The six-person structure stuck, with the Secretary of the Senate and Clerk of House serving in addition without the right to vote. That was reported to the joint session between the committees of the Senate and House.
On Oct. 7, 1974, two months after Nixon resigned from presidency, Congress approved amendments to the Federal Election Campaign Act of 1971. Nearly each component of the amendments were the House decisions, which leaned away from being the sort of bill that might eliminate big money and existing power structures from influencing politics.
Hays’ influence on that bill was practically satirized when President Gerald Ford signed it into law on Oct. 15:
“Well, what it all comes down to, in my judgment, is that between a Congress controlled by one party, a White House in the hands of another, and a working cooperation between the Senate and the House, and the hard-working members of that conference — I guess you were part of that, weren’t you, Wayne — [laughter] — we ended up with some legislation that I think deserves the support of the American people, and I think they will support it.”
Hays continued to try to undermine the Commission until he was ousted from Congress in 1976 for putting his mistress on his payroll as his secretary.
The commission’s structure, formed in large part by a man who was ousted for corruption two years later, sticks today. The Secretary and Clerk still act as custodians of election forms and disclosure, and were only removed from the commission by a Supreme Court ruling two decades ago.
A 1974 editorial in the Chicago Tribune said Hays was keen on the commission never existing — period. “(He) is adamantly opposed to setting up an independent elections commission. Under present law, the House and Senate police their own campaign practices, which is like sending a barkless dog on burglar patrol.”
Rachel Premack, a former IRW intern, is now a senior investigations reporter at Business Insider. Contributing: IRW Executive Editor Charles Lewis; former IRW interns Allison Desy, Emma Kerr.