The Federal Election Commission has not solved the “Super PAC problem,” but then again the Commissioners cannot agree on what the problem is. Others outside the agency are divided in this same way. A number of questions in contemporary campaign finance are like that. Because positions are passionately held, each side is convinced that the other is not merely mistaken but dead wrong, maybe also ill-motivated. Given the chance, proponents and opponents of new rules would like to win however they can.

So there is the hope that the Supreme Court can be shifted by a vote toward a more favorable judgment on congressional power to control campaign finance. And proposals are made to strengthen the FEC for a more decisive role. The Brennan Center suggests that the FEC could make strides in the direction if it could be restructured to a) bring an element of nonpartisanship into the choice of Commissioners, by assuring that at least one is unaffiliated with a party and b) add an additional Commissioner to the total to get to an odd number and avoid deadlocks. The changes would supposedly work together to make good decisions: the odd number of Commissions guarantees decision, and the provision for nonpartisanship improves the chance that the decision will be a good one. To secure this ingredient of nonpartisanship, the Brennan Center suggests a “blue ribbon advisory panel” to recommend nominees for consideration by the President.

The goal of a decision is different from the goal of a good decision and so, in this respect, an odd number of Commissioners only gets us so far. And no one has yet defined how “blue ribbon” recommendations of Commissioners, or the requirement that one or more of them be unaffiliated with any political party, will achieve a particular reform objective.  “Nonpartisan” Commissioners will not be without opinions; they will hold views that inform their regulatory positions, just as there are independents who reliably identify with one party or the other.

We could expect, then, that Presidents might look for the “nonpartisan” candidates whose views correspond most closely with his or her own. Plenty of dependable choices—people with political leanings or ideological perspectives– are available for the picking among the academics or retired judges or “business or community leaders” that the Brennan Center cites as plausible sources of “nonpartisan” recruitment.

The labeling, then, may be different, and it may temper the usual suspicion of Congressional or party control, but why should it be assumed that the results would be different?  The proposed bill on which the “blue ribbon panel” proposal is based, the Restoring Integrity to America’s Elections Act, accepts that the President will choose the members of the panel. If the Center is convinced that the nominations game is rigged, its proposal may merely alter the procedure for rigging it.

This question of the FEC’s failures has been confused by the conviction that there would be clear answers to many of the hard questions if only sensible nonpartisans can be put in charge.  But the Super PAC question, prominent among the Brennan Center’s concerns, shows why this confidence is badly misplaced.  These PACs are a product of the convoluted and creaky Buckley jurisprudence that, on a particular theory of corruption and how it works, extends special protection to independent expenditures.  To attack the problem through a reconstituted FEC, as the Brennan Center urges, is far from a sure shot: even if an odd-numbered, more “nonpartisan” FEC could push through the more expansive coordination rules, it faces a fight in the courts and no trivial chance of defeat.  A fully successful defense of the principal anti-coordination proposals would require altering the meaning of “independence” well beyond the conception set out in Buckley, with serious implications for other organizations and their activities.

There are measures, some noted in this brief paper, that could help address significant effects of Super PACs, and in particular single-candidate Super PACs, on the electoral process.  But they are not ones that the FEC is empowered to put into effect, now or as reorganized.

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