In the War of FEC Commissioners, a Republican, Lee Goodman, has returned the fire of his colleague Ann Ravel and given his account of whether the agency has failed to enforce the law.  He says it’s not so. Much of the time, he writes, they agree, and where they don’t, the points of disagreement are focused on large issues like the definition of what constitutes a “political committee.” But he says more, giving examples of what he means, and the additional argumentation is illuminating.

Commissioner Goodman claims that in explaining deadlock, the Democratic side won’t credit their Republican colleagues with principled stands.  He cites Chair Ravel’s vote against continued enforcement of a rule governing paid Internet advertising. It is not up to a Commissioner, Goodman suggests, to use the enforcement process to score a point against a valid regulation or to pursue a respondent who has complied with it.

But he also notes another case of deadlock, which involved the enforcement of the Commission’s “candidate debate” regulations. And this example shows, and to some degree why, the Commissioners tend to fall out when it seems that unity would be within their grasp.

The debate regulations allow for certain qualified corporations to”stage” debates between candidates without running afoul of the prohibition on corporate contributions.  It aims to keep the structure of the debates from favoring one candidate over another and slipping from a display of the candidates’ position into implicit advocacy of one over others. It requires the eligible organizations—media and certain non-profits—to establish and apply objective pre-established criteria for determining which candidates will be invited to participate.  In the case at hand, cited by Goodman, the Commission could not agree on the rationale for applying the rule but wound up dismissing the complaint of an excluded candidate.

The Republicans took the position that the Commission lacked jurisdiction in the first instance because under the statutory “press exemption,” the station holding the debate had unfettered editorial discretion to decide whom to include.  The Democrats would have preferred to focus solely on the regulation and whether its terms had been met.  The General Counsel had concluded  that they had not: that there were, in fact, objective criteria and that by a wide margin the candidate-complainant did not satisfy them.  The General Counsel also found no basis on which to believe that the debate criteria were somehow rigged so that the one candidate could not participate.

There was, then, not much controversy here about the regulation.  The Republicans pressed on.  They conceded that there was some tension between the press exemption, on the one hand, and this regulation, on the other.  The debate rules carve out for special treatment activity that hovers in the zone between a pure press function and a campaign-related event.  So the question is whether the press is putting on an event, or “covering” it.   But the Republican Commissioners insisted that the agency had to decide the case on the broader ground.  So there ensued a move on their part to have the case decided that way, which the Democrats would not go along with: the result was a 3-3 vote, after which the case was dismissed on the basis of the General Counsel’s recommendation.

Commissioner Goodman cites this as a case where the Democratic side disregarded an important constitutional principle and forced a deadlock where none need to have occurred.  But another choice on the Republican side would have been to just dispose of the case under the rule and look to other processes—e.g. a rulemaking—to register and address the principle those Commissioners were anxious to protect.

What does all that tell us?

The FEC seems to fall into deadlock because, in different fashion, each is engaged in a project of law reform.  The Democrats stand for “enforcing the law” when often the law is unclear or presses against against expanding constitutional limits, and as a result, the outcome they favor seems complicated, unduly burdensome or heavy-handed.   Their position is understandable. Holding down the Buckley fort, they are engaged in frantically rebuilding its defenses.

The Republicans wish to renovate the structure with the Roberts Court as their inspiration (if not always precisely their guide).  Critics believe that they have come to see the 1970’s law as periodically amended as a teardown.  They deny an intention to demolish it altogether and put nothing in its place; their purpose, they claim, is to face and correct increasingly evident flaws in its design and construction.

In the case cited by Commissioner Goodman, however, it would have been possible to put the law reform projects to one side, reach the result all agreed upon, and return to the more basic issues in a forum better suited to it.   At least then it would have not been yet another dispute over who was willing to “enforce the law.”

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