In the course of a week’s discussion of the state of the campaign finance law, various descriptions and explanations have been offered.   FEC “paralysis” has led the list, with the level of fines given as evidence, and it has also been suggested that the tenure of former Commissioner McGahn has to be taken in account.

The Meaning of “Paralysis”

National Public Radio devoted an hour of The Diane Rehm Show to a discussion of the state of campaign finance, the question before its invited panel being: what to make of the “paralysis” at the FEC?   Senior election law expert Jan Baran was on one side of the argument; FEC Chair Ann Ravel, Campaign Legal Center President Trevor Potter and New York Times Reporter Eric Lichtblau were on the other.   It was an illuminating exchange—in its way. For if the issue, as the show title affirmed, was administrative “paralysis,” then the answer should be more administrative resolve to do what the law clearly bids the Commissioners to do. The discussion suggested that this view was too simple, but that because it is a simple view, it will have staying power in the coverage of money in this election cycle.

Organized into basic questions and answers, the conversation ran along the following lines:

Is the Commissioner too partisan? No, Chair Ravel said, it is not an issue of partisanship. She agreed that it is more a “fundamental disagreement” among Commissioners about how the agency should function.

What sort of disagreement is it? Trevor Potter believed that the FEC has failed in its regulatory mission. At the same time, he acknowledged that the differences over the law among the Commissioners and elsewhere is a “philosophical debate”, and Jan Baran stressed that the FEC deadlocks mainly on “highly controversial and disputed areas of the law.”

Are there are there other factors to account for this “paralysis”?   The Supreme Court is part of this story, and one result of its activity, Chair Ravel noted, is that there are “fewer laws to enforce.” Trevor Potter also took the Court to task for narrowing the grounds on which campaign finance can be regulated. In addition, as Eric Lichtblau pointed out, Congress has a role: there are major questions like the nature of a “political committee” that it has declined to take up.

What are the issues giving rise to concern about non-enforcement?  Super PACs and disclosure consumed a significant part of the discussion until Baran pointed out that Super PACs disclose.  Potter acknowledged that they do, but on a reporting schedule that he suggested was inadequate.

For the rest, Chair Ravel, Potter and Lichtblau cited stalemate over the question of which organizations spending money to influence elections are “political committees.” This was tied to the absence of disclosure (though the consequences of political committee statute extend beyond disclosure to other requirements, including potentially limits on amounts that can be raised and spent.) The disagreements over which organizations qualify as political committees dates back to the 2003-2004 when the FEC could not agree on a rule. All of this occurred, of course, prior to the time Ann Ravel became the Chair of the agency.

Lichtblau noted that the agency did resolve complaints against unregistered organizations after the 2004 elections. Baran pointed to the ad hoc nature of these decisions: no clear rule was agreed to or being applied, and with everything depending on the facts, this process made “guinea pigs” of every organization caught up in the enforcement process.   In effect, Baran was arguing that if the Commission in part had occasionally reached results, it had not done so necessarily on the basis of recognized “law.”

Are there are there other perspectives? Eric Lichtblau of The New York Times was also present to provide a journalistic perspective, and he was not equivocal in his assessment of the agency’s failures. The regulatory landscape had become the “Wild West”, where anything goes, and what some would take to be hard questions were replaced in his account by “clear abuses.”

So in sum: the FEC problem is not one of partisanship but it is “philosophical in nature”; certain of the issues on which it is divided, such as what is a “political committee,” are not new; the law and the agency’s capacity for administering it have been radically affected by Supreme Court jurisprudence; and Congress has declined because of the same disagreements to step in where it might. It may be that there is “paralysis” but the condition producing it is more complicated than a simple tale of good and bad intentions, of dutifulness and irresponsibility, of clear rules and a refusal to enforce them.

The Meaning of Fines

On the same day, Eric Lichtblau reported on the decline in fines imposed through the agency’s enforcement process, and the same subject came up this week in an interview of Commission Weintraub on The Rachel Maddow show.

The decrease cannot be doubted, and surely the disagreements on the FEC must have their effect. But if the disagreements are “philosophical”, involving “highly controversial and disputed areas of law,” then it is not clear that the low level of fines associated with those disagreements carries much significance. The Commissioners’ failure to agree to penalize certain activities will mean, of course, lower penalties overall. The real question is—should the activities be penalized? On that question the agency is divided.

But critics of the agency record have replied that the agency will not even subject more minor, routine or clear violations to sizeable penalties. There is a history behind this issue, well known to practitioners, and it has also to be considered in judging the meaning of penalty levels. Penalties are a rough measure, at best, of how an agency is performing, and one consequence of putting too much weight on them is that the agency may be motivated to produce numbers. This can lead to driving a hard bargain only where this is possible–on the cases that it can agree on. If it can reach agreement on the easiest, clearest, but not necessarily most significant charges, the most routine problems can wind up being penalized more than appropriate.

Again, the issue is not how many penalties the agency is imposing, but for what kinds of violations and on what grounds? The reporting on fines does not grapple with that issue and so it has little light to shed on the meaning of these numbers.

The Meaning of McGahn

Rick Hasen says that the paralysis is new, and that the explanation is Don McGahn. It all changed with him.  This statement is subject to qualification and can benefit from more context.

McGahn was unquestionably a consequential Commissioner. He was notable for the consistency and firmness of his views, and for his leadership of a Republican wing that voted invariably as a bloc on major issues. But the Republican Party had worked for years to assemble a trio of Commissioners who would display this unity, and observers of the agency saw how Commissioners on that side of aisle who did not meet this expectation could face heavy criticism and denial of reappointment.

It would be unfair to suggest that this was only a Republican concern: Democrats had many years before displayed little mercy toward the Democratic Commissioner who voted with Republicans to authorize corporations to solicit executives as well as shareholders for their PACs, and action was taken to replace him with someone deemed more predictable. And the reform community and allies in the press have been highly critical of Democratic Commissioners believed to be unfaithful to the party’s pro-regulatory commitments.

The other factor in the McGahn era was the enactment of McCain-Feingold. The Democrats and Republicans had been at odds, with varying intensity, over campaign finance limits for years. Business-as-usual in this conflict came to end with the 2002 reform. Many Democrats perceived in this measure the necessary answer to a crumbling post-Watergate regulatory regime. Republicans came to the very different conclusion that reformers had embarked on a major and dangerous expansion of their mission.

The battle moved to the courts but it became more intense at the FEC, and the Republicans were committed to discipline in their Commissioners’ ranks. This is a large part of the meaning of Don McGahn.


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