A dispute over whether the FEC is tilting its investigations against conservatives or Republicans is mostly a waste of energy.  Commissioner Goodman got this started at a Commission hearing and has been rebuked by Commissioner Ravel.  The Republicans profess to be outraged; the Democrats announce that this outrage has rendered them speechless.  Once again there is here, in the midst of this clamor, an important question– the uses and misuses of the agency’s enforcement process—that is being misdirected into another round of finger-pointing about bad faith and improper motive.

Each side knows well that many complaints are filed for political advantage.  The objective is sometimes to get press attention, sometimes to slow or complicate an adversary’s spending, and sometimes a little of both.  This does not mean that the complaints invariably lack substance.  More often, they have some substance, for if not, the charges are harder to sell to the press, and there is also the risk of a (more or less) speedy FEC dismissal.  It is also true that the substance may consist of a reasonable but untested theory.  The complainant wishes the FEC to investigate a particular activity and intends to set the allegation up for court review if the agency fails to act.

Does this state of affairs work to one party’s detriment, resulting in more complaints against it?  How either party fares in this private attorney generals scheme depends on whether it is engaged in activities that its adversary deems either competitively damaging or politically profitable to challenge.  In this world of (c) organizations, Super PACs and other innovations, it is unclear whether this will cause more of a problem for Republicans than Democrats.   This will be difficult to determine before the end of the current election cycle and for some time afterward.

One factor is the pace of change in the world of campaign finance.  Enormous sums are being spent with increasing inventiveness. The surfacing of new forms of fundraising or spending may draw complaints (unless they just inspire imitation).  The FEC is then faced with adjudicating cases of first impression, or difficult issues under the transformed constitutional law yielded by Roberts Court jurisprudence.

The FEC is ill equipped for this task. And maybe in these circumstances, agency humility, expressed in restraint, is justified.  The FEC has enough of a job on its hands when administering the law as it is: sorting out what the law should be, puts the agency to the limits of its capacities, especially when partisans are bringing the claims and partisan interests are directly affected. An agency structured to provide each party with a check on the other will come to deadlock in these situations.

Some Commissioners have said that they have been able to compromise on these issues in the past and force a settlement on sensitive and highly contested issues, and they regret that the same is not possible today.  Compromise has its virtues, but also dangers.  An agency that regulates political activity should find common ground where it can, but on the large and difficult questions, the agency owes the regulated community and the public responsible adjudication, consistency and clarity.  It should not be in the business of forcing settlements and levying fines to satisfy its critics and burnish its enforcement statistics.  It has happened in the past that the FEC has engineered settlements that permit the respondent to deny that it has violated the law but to assert a willingness to pay a fine to just get it all over with.  The result is a muddled legal result and a penalty paid effectively under protest.

Where speech and association interests are involved, this is far from desirable.  The drafters of the law almost surely did not have this coercive process in mind when it is authorized to agencies to enter into settlements through “conciliation” and to promote voluntary compliance.  Those were simpler times and the questions that the agency would take up were assumed to be, and often were, more straightforward than the ones we hear about so much, and so loudly, today.

Questions about the FEC enforcement process and its suitability in these times are fit for inclusion in a reform agenda.  It is reasonable to ask even if the private attorneys general scheme is the best or even a viable mechanism for achieving effective enforcement.  In the meantime, the discussion of these matters, even among the Commissioners, has reached only its current level, which is not all that high.

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