In op-eds and interviews, FEC Chair Ravel has chosen a particular course for her one-year term as the agency’s leader.  She is making use of the pulpit she now commands to express her view that the law is going unenforced.  It is question of Republican intransigence, she argues, and the consequences are “destructive to the political process.”  Commissioner Weintraub has advanced the same position. Republicans inside and outside the FEC have strenuously objected to this conclusion and the manner in which she has expressed it.  And they have added to their complaint the allegation that, in a “listening tour” on dark money and a forum organized on the role of women in politics, the Chair has acted outside her mandate and invited the appearance of partisan bias.

This is all very nasty and has led to collective “acting out,” as in the recent dispute over whether to have bagels or donuts at a 40th anniversary event.

Two different claims are getting thrown together in this clash, and separating them out may help focus on what ought to matter here.  One is the contention that the Chair is taking the agency, maybe for political purposes, beyond its proper mandate, and the other is the recurring charge that only one side of the Commission is serious about “enforcing” the law.

The Question of Mandate and the Role of the Chair

This seems the less weighty of the critiques and may be missing a more central question about Commissioner Ravel’s choices as agency Chair.

One would think opinions on the Commissioners’ political commitments or biases are sufficiently well formed on more salient grounds than a forum on the underrepresentation of women in politics.  We have Democratic appointees and Republican appointees, and the two wings have very different understandings of the law and what it would mean to enforce it. And these judgments are not detached from political commitments—Democrats and Republicans tend to see very differently the role of government, here as elsewhere, and they are divided by basic ideological agreement in their judgments of the Roberts Court. Democrats think the Court got it wrong in Citizens United; Republicans don’t.  Where the Democrats see the absence of regulation as a threat to fair access to the political process, Republicans are more disposed to see it as a risk to free speech.

Given the quarreling along mostly partisan lines over these fundamental issues, the forum seems harmless enough, not obviously an initiative that the Republicans should be too worked up about.  Worrying about issues of underrepresentation, and engaging the government in studying and possibly solving the problem, is what many Democrats do.  Maybe the announced topic could have been connected more systematically to campaign finance—there is one reference to fundraising—and, allowing for the possibility that not all issued invitations were accepted, the witness list might have been spared some of the criticism with more balance. But the entire event seems, in principle, unobjectionable and it might prove to be interesting and accessible to the general public. How bad can that be?

More significant is the fact that the forum is apparently only the Chair’s, not the agency’s, undertaking.   The invitation came just from Commissioner Ravel: it is not clear which of the other Commissioners, if any, will attend.   And this raises the issue of the role of the Chair as Commissioner Ravel now envisions it.

The Chair of the FEC is a rotating position, and the term is one year.  For that period, a Chair has influence, but only so much.   She cannot serve as Chair more than once during any one term.  This is not then an agency designed to have strong leadership and each Commissioner must make of the opportunity to lead in whatever he or she can.

Chair Ravel became Chair in January and by now it is clear, as she more or less confirmed to The New York Times, that she will use the moment to sound the alarm about her colleagues and the agency’s performance.  She had expressed these doubts before in her tenure.  But now she is the Chair, and it is at least depressing that she concluded that as head of the agency, this is all that she thinks can be accomplished in this post.  When Don McGahn was Chair, he made clear that he thought the Democrats were all to eager to over-regulate.  Chair Ravel argues that the Republicans are resisting regulating at all.  In each case, the Chair of the agency has been its most prominent critic.

And now we have gotten to the point that a Chair is launching initiatives apparently on her own, without engaging the support of the rest of the Commission.  In this respect, the forum is like the listening tour.  She is flying solo. And this has included authoring an op-ed in The Washington Post in which she unilaterally warned potential presidential candidates that their “testing the waters” activities could violate the law.

To Commissioner Ravel’s credit, she previously crossed party lines and joined the Republicans on votes (Obligatory Notice—including one Advisory Opinion requested by my law firm; another one can be found here), and in approving the institution of much needed rulemakings to implement Supreme Court opinions.  It seems that once she was inclined to find common ground.

Now the Chair is saying that that quest is pointless and she will have to go mostly her own way.  She became Chair in January and now it is May: this all came apart very fast. It is clear that she has largely given up on leading within, and will turn the Chairmanship into a platform from which to criticize her own agency, run her own programs and express her own views. This is a view of her Chairmanship that will continue to complicate the already difficult situation at the agency.

The Question of the Law and Its “Enforcement”

The Chair and those sympathetic to her position insist that the issue is one of “enforcing the law”—just that.  And, on certain votes , it is true that the reasons that Republican Commissioners give for declining enforcement can seem forced and driven in the main by reflexively hostility to the regulatory enterprise as a whole.  They may feel justified, taking heart from the deep suspicions of regulatory excess voiced by the Supreme Court, most famously in the Court’s Opinion in Citizens United in which Justice Kennedy likened the FECA and the FEC’s administration of the statute to” licensing laws implemented in 16th-century and 17th- century England, and governmental practices of the sort that the First Amendment was drawn to prohibit.”   If Democrats can argue that the Court has issued a “directive” favoring disclosure, then Republicans are entitled to say that they have been “directed” to be restrained in their enforcement activities.  But there is such a thing as going overboard.

Yet it would be wrong to think that this is the whole story.  For if the Republican Commissioners can be criticized for taking their position to the limits, the Democratic Commissioners’ approach to enforcement can also be open to question.

A recent example is a case involving the use of money that was foreign in source, or directed by a foreign national, to influence a ballot initiative in Los Angeles County.   In the Matter of Mindgeek USA et al., Matter Under Review 6678 (2015).   The respondents argued that the law did not apply to their activities, that the FECA only controls the expenditure of funds to influence elections to select individuals for public office.  The FEC had said so for years, and while the amendments to the law made by McCain-Feingold introduced ambiguity into the statutory language, the better part of authority supported the respondents’ position.  The agency General Counsel recommended against enforcement.

The Commission deadlocked over this recommendation, and two Democratic Commissioners, Ellen Weintraub and Ann Ravel, argued for enforcement.  They did not make too much of the law. It seemed in their view just as much a question of the right thing to do: it was good policy and legitimate citizen expectation that foreign nationals not be permitted to use their wealth to influence any aspect of the democratic process.

Chair Ravel concluded that the law was sufficiently unsettled that the Commission should look in deciding the matter to the requirements of “democratic self-government.”  She warned that “voting on ballot initiatives is particularly vulnerable to foreign national spending.”   By voting to enforce the law, the Commission would have reached “the result that best accords with the expectation of our citizens, who do not want to see money from foreign sources interfering with fundamentally local decisions.”

On this view, then, the law should be read and enforced as the citizenry would “expect”, that is, according to their preferences for an outcome that the drafters of the law may or may not have intended.  Commissioner Weintraub writes in the same vein about the “strong policy reasons why the Act should be read to prohibit foreign funding of ballot measure committees.” According to the Commissioner, the distinction between candidate and ballot elections—the key question in the case–should not get in the way of enforcement because “from the voter’s perspective…this is a distinction without a difference.” Commissioner Weintraub goes on: “I think most Americans would be disturbed by the notion that a wealthy foreigner could freely spend to rewrite our laws.”

A regulatory position that puts less emphasis on legal authority and conventional legal analysis, and more on policy and public opinion, may have undeniable passion and good intentions behind it.  And both Commissioner Ravel and Weintraub do strive to engage the public, the former with forums, hearings and travel, and Commissioner Weintraub with tweets.

In this case, for example, Commissioner Weintraub tweeted her views as follows:

Ellen L Weintraub @EllenLWeintraub · Apr 24
Should foreigners be able to fund ballot measure committees to change U.S. laws? My take here: What do you think?

The answer to the question she posed to the public might well be the one she hoped for, and it might make for the best policy, but it would not be the answer supported by the best reading of the law.

So it would be difficult to say that the views she and the Chair put forward in this case represent the superior view of law “enforcement.”  But as things go, the case will still be casually tossed into the column with other cases in which one side is charged with feckless “non-enforcement.”  The more complex issue here may be overlooked, buried in the standard narrative about a dysfunctional agency and the sources of its woes.

At the FEC, there is responsibility all around to be shared for its problems.  There are also limits to what this agency can do in the best of times.  The hard work will have to be borne eventually by Congress and the courts.  The FEC can’t make things much better in the meantime, but it could dedicate itself to progress where it is possible, and it could try to avoid making things worse.

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