More Rows at the FEC

April 14, 2014
posted by Bob Bauer

The decision in  McCutcheon  has not been the only source of lively rhetoric in the world of campaign finance. The FEC’s commissioners took to very open squabbling, putting their cases in Statements of Reason and elaborating on them in op-eds and letters placed with the New York Times. The conflict in this instance involved Commissioner Ravel on one side and all of the Republican commissioners on the other, and they swiped at each other in strong terms over the properly defined responsibility of FEC Commissioners and the role of courts.

Commissioner Ravel complained that the Republican commissioners were refusing to even investigate major issues in the enforcement of disclosure requirements—in the case at hand, against Crossroads GPS. Having created deadlock and blocked enforcement, she charged, the Republicans expect the Commission to defend their inactions before  inappropriately deferential courts that “have turned a blind eye to this [regulatory] paralysis.”   For this reason, Commissioner Ravel joined Commissioner Weintraub and abstained from a  vote to defend the suit brought by Public Citizen against the agency for failing to act against Crossroads.

To the Republicans this all sounded much like a lack of respect for the courts and for the function of judicial review.  They objected to the abstention vote as a break from Commission practice, and have depicted it as an attempt to “censor presentation of the agency’s rationale for its prosecutorial discretion in the Crossroads matter.”

These accusatory exchanges—full of words like “grandstand” and “indefensible”—are not particularly enlightening and will not advance the campaign finance debate. Nor will they inspire much confidence, already in short supply, in the Federal Election Commission. It seems long past the point that each of the contestants ought to take seriously the passionately held beliefs of the other. Not all reformers are out to suppress speech; not all reform critics have as their sworn mission establishing oligarchy in the United States. This having been said, there is every reason to believe that the future holds more the same.

And what about the substantive question of whether the Commission should defend its own inaction produced by deadlock? Commissioner Ravel is understandably unhappy that, in the name of the “Commission,” a decision against enforcement with which she strongly disagrees would be defended in the courts.  The law, however, is clear that for purposes of judicial review, the courts examine only the rationale of the “controlling bloc” of Commissioners—here the Republicans—who declined to proceed against the respondent.  So there is little danger that a Commission vote to defend, which is the condition of judicial review, would be taken mistakenly for Commissioner Ravel’s (or Weintraub’s) support for the Republican position on the merits.

Moreover, the review here by the courts must be counted better than no review at all.  This is, after all, a case brought by the original administrative complainant, Public Citizen, and without a Commission “defense” of its inaction, that organization would be deprived of any further hearing on their cause.  From a disclosure or reform point of view,  this would be a bad outcome. Complainants like Public Citizen would be caught up in the FEC’s stalemate.

As for the courts and their periodic deference, in doctrine and by inclination, to the FEC:  this, too, might well vex Commissioner Ravel. But it goes too far to say that the FEC always loses in court. In other contexts, such as in the Shays cases, litigation led to significant re-shaping of the rules implementing McCain-Feingold. To the extent that on complicated issues, on which there are deep differences of opinion, the courts might be reluctant to act too assertively, one might be somewhat sympathetic toward this exercise in judicial restraint.  But Commissioner Ravel, decidedly unsympathetic, calls it “misguided,” a “rubber-stamping,” or the deprivation of “meaningful judicial review.”

So while it may be a bitter pill for half of the Commissioners to be associated with the “defense” of a dismissal that they disagreed with, the net result is recourse for the disappointed party and a role for the courts in reviewing the agency’s failure to act. One has only to recall that for years, the FEC litigated to avoid judicial review of its dismissals resulting from deadlock.  In DCCC v. FEC,  the Commission objected, unsuccessfully, to court review of its refusal, without explanation, to pursue enforcement action recommended by its General Counsel.  Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (1987).  Then, having decided this case against the FEC, the courts held that courts reviewing a deadlock could look to the “controlling bloc” for the position that, for judicial review purposes, would be scrutinized on appeal.   FEC v. Nat’l Republican Senatorial Comm., 966 F. 2d 1471 (1992).

It is not clear what objection can fairly lie against this procedure for achieving review of dismissals by deadlock. Of course, Commissioner Ravel is more exercised about the fact of deadlock itself and the limited help she expects to find in the courts.  So her abstention is a protest vote.  But does this strengthen the hand of the dissenting Democratic Commissioners or add to the force of their argument?  Certainly this protest registers in a new way their disagreement with their colleagues about the proper interpretation and enforcement of the law, but about this, there has been no mystery.  And the vehicle for reiterating their point is their refusal to approve access to the courts for a complainant who shares their grievance against the Republican Commissioners.

Who then is “responsible” and who “obstructionist”? It is not a useful question. Commissioner Ravel has strong views of the needed direction of the law, and Republican colleagues another. The differences between them can be reasonably explained.  “Reasonably” is not how these conversations go these days at the FEC.

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