“Desperate” at the FEC

June 9, 2015
posted by Bob Bauer

By petitioning their own agency for a rulemaking, Commissioners Weintraub and Ravel have found a novel way to charge their colleagues with fecklessness. Call it a populist gesture: they are stepping out of their roles as administrators and issuing their appeal from the outside, as members of the general public. They may have done all they could or intended to do with this Petition, which was to publicize their grievances. Or they may have sought to add to public understanding of the grounds of this grievance-to enlighten and inform, and not only turn up the volume of their complaint.

A first point—minor but worth considering– is whether this agency needs another quirky procedural controversy. What does it mean for two Commissioners, one of whom is agency Chair, to dispense with their formal roles and petition as citizens, filing a petition on plain paper without their titles and just the Commission’s street address? Will they recuse themselves from voting on the petition as Commissioners? Will they testify before themselves?

One explanation provided to USA Today is that it will allow for a hearing at which the general public will be heard. But such a hearing has been held, and the Chair could have unilaterally arranged for another, as she did recently in convening a forum on the role of women in politics.

The answer to this may be no more than: it does not matter, because the Petition serves only to make a point. A sympathetic observer would call it a cri de coeur; one less sympathetic might see it as a PR maneuver. What might unite the two sides is merely their agreement, for entirely different reasons, that the Commission is not in good working order. The risk of the petition initiative is that rather than move the discussion to a better place (hard as that is), it sends a dreary message about the state of the agency.

This bitter taste might have been be tempered somewhat by fully argued content. In this respect, the Petition is surprising. It makes a fairly routine pass at the issues that are being mulled over in the press and among commentators, and the advocacy here does not depart significantly from the standard output.   There are references to “dark money” but no explanation of what exactly they have in mind. And it is unclear why the Supreme Court is said to have “directed” the promulgation or enforcement of disclosure requirements. This line of argument, which has come up before, would also have Citizens United understood to be the source of both woe and salvation. On this view, the Supreme Court in CU took constitutional theory in an abominable direction, causing all sorts of problems, and yet we should listen closely to what the Justices would like us to do next.

The Commissioners do have clear positions on rules to guard against illegal “coordination” between candidates and Super PACs. They would like broadly to prohibit these organizations from acting as “alter egos” of the candidates, and they cite Richard Briffault’s treatment of coordination in the Columbia Law Review without saying which part his analysis they would adopt. Maybe they propose to limit how many candidates a Super PAC must support to avoid application of the coordination restrictions. Or maybe they would like to enforce those restrictions when a candidate “signals” approval of a PAC message. They don’t say. In either case, the rule would be hard to fashion and to administer, and there would be fair doubt about its constitutional viability under current doctrine, before this Court .

No such qualification or question or further discussion appears in the one paragraph of this Petition dealing with this proposal: the Commissioners make it seem all fairly straightforward and self-evident. Maybe this would be enough for a Petition filed by a honest-to-goodness member of the general public, and it is as members of the public that the Commissioners have filed their Petition—though it is meant to get special attention because they are Commissioners.

But then, as Commissioner Weintraub explained to USA Today, she and her colleague are “desperate,” and the Petition establishes at least that much.

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