A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it?   But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form.  Potential recusal is part, not all, of the problematic course that this initiative could take.

The Commissioners wish to have the Commission “clarify” two issues they claim to have been thrown into some doubt by Citizens United.  They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures.  A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.

If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.

In the case of foreign nationals, the rules prohibit foreign nationals from participating in or directing decision-making about expenditures, and it is not entirely clear from the face of the petition what Ms. Ravel and Ms. Weintraub now would like the Commission to do.  It might be their view that foreign- owned and controlled US subsidiaries cannot make expenditures at all, a step that the Commission could not take as an administrative matter without controversy (and litigation).  If what they seek is short of that—such as a “clarifying” revision to the rule barring foreign national control, participation or direction—they don’t say how the current rule is lacking or how they would remedy it.

The current anti-coercion rules seem to cover the case where a corporation coerced employees (or a union its members) in making independent expenditures.  Few practitioners would suggest that there was much question about it; at least they would concur that there was substantial legal risk in attempting coercion.  And here again, the Commissioners attempt to stake out a sort of middle ground.  They don’t deny a basis under the law to believe coercion is prohibited but they call for clarification. They propose to “more clearly” protect employees and union members by “confirming” broad legal protections.

Now suppose that, as often happens, the Commission cannot reach an agreement on this need for clarification, or on a specific clarifying or “confirming” measure.  Or it divides on the fundamental question of whether any clarification or confirmation is necessary.  Where does that leave the law or Commission enforcement policy? There is likely to ensue more doubt about what the law is, and on the part of those actors so disposed, more of a temptation to believe that the agency’s failure to clarify or confirm a prohibition lends weight to the position that there is no clear prohibition at all.

The procedural question of whether the Commissioners can participate at all in votes on their own rulemaking comes into play here.  If there is a question of recusal, then they will have turned the decision over to a four-person commission, three of whom are members of the opposite party that they have charged with systematically refusing to enforce the statute.

Commissioners Ravel and Weintraub would take the view that the Commission can act only by majority vote and that their recusal would have no practical effect: if the third Commissioner on the Democratic side (who is an Independent) votes as they would, their own votes would not make a difference.  A 3-1 vote is no more a ”decision” than a 3-3.  Not all, however, agree with this view: Brad Smith has argued that a 3-3 is a decision.

And should three Commissioners reject the view that a clarification is needed, reasoning that the law does not have the breadth Commissioners Ravel and Weintraub are arguing for, then for all practical purposes, an enforcement decision has been made.  The agency will not enforce the Ravel/Weintraub view.  Moreover, as a rhetorical matter, proponents of less regulation—and their counsel–would be pleased to note that, confronted with a bid to clarify or confirm a broader reading of the rules, 75% of the Commissioners voting on the proposal rejected it.

The strategy that Commissioners Ravel and Weintraub have adopted by filing this petition may have served well the purpose of publicly communicating their concerns about the agency.  It may turn out to be less effective in serving their enforcement and policy objectives, and could, in fact, put them at risk.

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