A Functioning Agency and the Sources of Dysfunction

October 10, 2014
posted by Bob Bauer

The Federal Election Commission approved rulemakings to conform its regulations to the Supreme Court’s decisions in Citizens United and McCutcheon.  This was not accomplished in a hurry, more than four years having passed since CU was decided. That it happened at all was generally received well, but with dissents, which are worth noting as the sources of agency functioning or dysfunction are analyzed.

Reform organizations, joined by Commissioners Weintraub and Walther, are dissatisfied with a mere updating of the regulations to reflect changes in constitutional law. They had wanted the rulemaking to address also what they take—not unreasonably—to be weaknesses in the Commission’s disclosure requirements.  For this reason, they oppose any revision in the rules to satisfy newly decided constitutional requirements.  They evidently feel that the Republican Commissioners got what they wanted—a house-cleaning of the rulebook—and that other Commissioners (two Democrats and an Independent) should have held out for a more substantive revision of the rules. Commissioner Ann Ravel came to a different conclusion that now, in these circumstances, the house-cleaning rulemaking was a sensible compromise—a first step that could be followed by others—and she crossed over to vote with the Republican Commissioners.

Politico reported that this compromise suggested a break in the gridlock, but the reform organizations and the Commissioners sharing their position responded with sharply worded disagreement. Democracy 21 actually characterized the approval of the rulemaking as evidence of “dysfunction”—by which it meant, apparently, that the agency functions if and only if the actions it takes comport with specific policy or regulatory preferences—in this case, those of Democracy 21.

Commissioner Weintraub argued the same case but with the additional suggestion that the Supreme Court had endorsed the type of disclosure that the agency failed to agree on. She could not, the Commissioner wrote, “support a rule that frustrates the Court’s clear directive on disclosure.”

But it is goes far to say that the Court endorsed one regulatory choice or the other, or that it issued any “directive” to enact a particular rule.  This is not the Court’s role: it does not direct disclosure policies, but sets the bounds for legislative choices made directly or by delegation.   Commissioners Weintraub and Walther may have entirely defensible concerns about the inadequacies of the disclosure rules governing “electioneering communications,” and there is no indication that Commissioner Ravel disagrees with them.  The Court is not, however, a party to this argument and it shouldn’t be, except to the extent that it has sanctioned a constitutional justification for the choices open to the Commission.

If there is disagreement among the Commissioners about those choices, is this cause then for objecting to any action on the rules, and in this case, action to bring them into line with the constitutional requirements?  It seems that the Commission is obligated to issue rules consistent with constitutional and statutory law.  The agency may have trouble agreeing on other regulatory requirements, but it should be able to agree on this—on basic, everyday administration of the statute, such as issuing rules in good order.  And as seasoned negotiators regularly counsel, agreement on something is better than agreement on nothing at all, and may be conducive to more agreement later.

Maybe the end to gridlock marked by yesterday’s action will be temporary: we shall see.  For practitioners and observers used to the rounds of squabbling and name-calling, and who rely on the rulebook for guidance, a bipartisan vote to update the regulations  was very welcome.  The agency functioned as it should, and to the extent that it could. If there were still traces of the familiar dysfunction, they were found in the attacks that followed on the compromise the agency was able to achieve.

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