Cause for Complaint to the FEC

February 19, 2015
posted by Bob Bauer

Larry Lessig and Brad Smith remain at odds over the complaint Professor Smith’s organization, the Center for Competitive Politics, filed against Mayday PAC for violating the disclaimer rules. While not using precisely this word, Lessig believes that the CCP action was petty.  The problem, he says, was a breakdown in approval procedures and vendor performance, and no one was harmed.  Smith has no use for the excuse and he says that an organization dedicated to regulating political activity ought to be held to account for violating the regulations it is dedicated to promoting.

It is a familiar scene—a spat between adversaries, one of whom has resorted to complaint to make a point. In this case, CCP has made what it believes to be a telling point, supported by a clear violation of law, about campaign finance and policy—about the costs of the Mayday reform program.  Most often, the complaint wars break out among electoral competitors, and the claims are more speculative and the aims nakedly political.  The public is treated to certain claims about the rules, what they call for, and the ways in which they are violated, and the complainant pressing for action is all set to denounce the agency for not taking it – – whatever the merits of its cause.

And this raises a useful question when the 1970’s reform structure is undergoing reconsideration.  To what extent do the federal campaign finance laws benefit from the private attorneys general scheme for enforcement as it is currently structured?  The FEC can act on its own, but it must rule on complaints, supposedly within a specified period of time and then giving reasons for not acting that are appealable to the courts.  It is true that well researched, well-founded complaints have been brought to the Commission’s attention and have resulted in either agency action or, on appeal, judicial orders to enforce the law.  But it is also true that complaints whipped out of thin air, then built out and embroidered with rhetoric, have added to the Commission’s workload. Their contribution to the development of the law or clear public understanding of it should not be overstated.

One tool for managing the problem has been to put some burden on the complainant to allege a clear violation of law and to attest to the facts giving rise to allegation of a violation.  Processes like Alternative Dispute Resolution have also been designed to channel complaints where possible into a special procedure for efficient resolution.

But still there remains the considerable back and forth between political adversaries, making or responding to dubious charges. Complaints of zero to middling significance provide fodder mainly for political showmanship and consume resources disproportionate to the gain in law enforcement. The FEC never looks particularly good in the middle of all of this. It’s resources are taxed and its response can be quite slow, leading to the persistent criticism that it is unable to respond quickly. And it must act against a background of inflated rhetoric about the importance of the alleged violation: should it have to dismiss the complaint, for want of merit or because of disagreement within the agency, it is one more occasion for the standard grousing about how it doesn’t do anything.

This aspect of the enforcement scheme might be modified.  Private complaints could still be provided for but only to seek enforcement of core provisions of the statute– e.g. the contribution limits or source restrictions, or reporting provisions where the amount in question is sizable.  Other problems could be brought to the agency attention but not by formal complaint, and in these cases, the FEC would not be obligated to act within any specific period of time, or to respond with formal findings on the basis of which the complainant could appeal.

Perhaps, too, thresholds could be established for the complaints that are filed to assure that they are targeted at consequential activity.  For example, a complaint would not lie against small-scale contribution or source restriction violations. Such a case might be one like that many years ago in which the FEC was called to enforce the law governing corporate contributions against the placement of a candidate promotion on a racing car. The Washington Post was moved at the time to comment that “there has to be a better use of FEC resources than investigating bumper stickers.”

This is a worthy undertaking — to concentrate on what the FEC should try to accomplish and then help it conserve its resources to do that.

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