The FEC and the Path of Reform Proposals

September 27, 2013
posted by Bob Bauer

The recent emails from the Federal Election Commission, unearthed through a Freedom of Information Act request, don’t reveal much that is new about the agency or the election law bar.  That Republican or Democratic lawyers might speak an encouraging word to the Commissioners on their side of the aisle does not qualify as breaking news. Here and there is a congratulatory note, or a substantive but not case-specific comment: but that’s about it. Should anyone be surprised, it would be the long-time skeptic who has imagined that the parties are weighing in on pending decisions in the dead of night. There is none of that in these disclosures.

The Commission is certainly divided on the major issues, and there is little doubt that it will remain so, even if one adjusts for the impact of specific personalities, poor personal chemistry, and whatever change will be ushered in by the arrival of two new, freshly confirmed Commissioners. When one side of the Commission is celebrated for upholding the rule of law—“finally the rule of law seems to have arisen at the FEC!” cheers one email correspondent—the other side believes that that nothing could be further from the truth: that in fact, the rule of law is being smashed to pieces. The differences, which are primarily differences over what the scope of the FEC’s regulatory authority should be, could hardly be more profound.

It is hard to overstate what this difference means for the evaluation of reform proposals dependent on the FEC’s implementation and enforcement. In almost all such proposals, the FEC is charged with making the law work, acting by rule to fill in the blanks and bringing the goals of the sponsor within practical, enforceable reach. Often—really typically—the very sponsors of the proposals are the ones most critical of the agency’s performance. But they are stuck: the agency they distrust is the only agency they have, and on it must rest their hopes for enacting effective repairs to the parts of the law that they argue are collapsing or in ruins.

There is the example of the Empowering Citizens Act introduced by Congressmen David Price, Chris Van Hollen and others, in which the sponsors address, among other issues, the issue of independent expenditures. Their target is the “sham” independent expenditure made possible by one form or the other of illicit “coordination” with the candidate.  In McCain-Feingold, the FEC was directed by Congress to scrap one such coordination rule and replace it with another. It did so, and then it was sued repeatedly and successfully until it managed to get on the books the rule we have today. Shays v. Fed. Election Comm’n, 414 F.3d 76 (D.C. Cir. 2005); Shays v. Fed. Election Comm’n, 528 F.3d 914 (D.C. Cir. 2008). The proposed reform would once again direct that the FEC version be scrubbed, and this time it would have Congress specify more clearly and explicitly, in the light of Speechnow, Citizens United, and the rise of super PACs, what it expects to see in new rules. See H.R. 270, 113th Cong. § 324 (Introduced Jan. 15, 2013).

Under this proposal, certain persons would be defined to be “coordinated spenders” whose spending would be “deemed” to be coordinated. See id. § 324(c). The same rule covers an entity established or managed by an individual who, in the current election cycle or four years before, held a paid position as a “political, media or fundraising adviser,” or “a formal position with a title,” with the candidate or any committee she controlled. An organization established, managed, or directed by a member of the candidate’s immediate family would also qualify as a “coordinated spender,” as would any political committee that received a contribution from such a family member. The fight the bill sets up here is with the current majority on the Supreme Court, not the FEC; the agency may or may not have occasion to build out an implementing rule.

But the FEC would still have work to do to comply with the bill’s requirement that it “promulgate new regulations on coordinated communications which reflect the amendments made by this Act.” It would have to determine when an expenditure has been made “entirely” independently of the candidate, or when the expenditure could be said to result from a “general understanding” between the candidate and an independent spender. It would have rule on whether an entity is a “coordinated spender” because the candidate could be said, directly or through agents, to have given “tacit” approval to its creation, or because communications between the candidate and entity were more than “incidental.”

The regulatory tasks called for by these provisions would be difficult for the FEC of today to successfully undertake, mirroring as it does deep divisions over the law. If later there is more email traffic, it will show that each side to the arguments is confident that it is precisely the law—even more, the rule of law—that it is defending.

Leave a Reply