Ambition and Ambiguity

April 15, 2016
posted by Bob Bauer

Democrats and Republicans are disputing once again the agency’s record in dealing with contributions made to candidates through LLCs without disclosure of the original source.

The Republican Commissioners say that the law is unclear and, absent a clear purpose to evade reporting requirements, there is no justification for enforcement.  From the outside, Brad Smith agrees, and he questions why the Democrats won’t give up on enforcement actions on which there is no agreement and simply work on a rulemaking to establish clear, concrete rules.

Commissioners Weintraub and Ravel have replied with a Statement calling into question the Commissioners’ good faith on the issue.  They were prepared, they note, to dispense with penalties in recent enforcement cases if the Republicans would join with them in a sensible and unequivocal statement of the law, and they don’t accept as sensible an intent or purpose-based test.

Taking the claims on each side at face value—crediting the Commissioners with meaning only what they say—one can ask: what is this argument about?  The very skilled Smith has shown that someone so inclined could defend the proposition that that there was really some doubt about the law and a donor might imagine that she could set up an LLC or use an existing one to make a contribution that would be reported only in its name and not in hers .  Elsewhere, here included, there has been doubt that there could be any doubt. Lawyers disagree.

But among the Commissioners the legal disagreements are at bottom the product of fundamental divisions over how this law–this kind of law–should be enforced. The Republicans believe, as they long have, that campaign finance laws enacted within constitutional limits should be limited in ambition and very clear.  The one goal is related to the other.  The narrower in scope, the less ambiguity in the law.  Behind this is the fear that laws of this nature are dangerous in potential effect on speech and association.  The extent of the danger varies with the extent of the ambition and of the ambiguity.  This puts the Republicans on guard, to the point of either paralysis or obstruction, depending on the point of view.

Democrats have for many decades exhibited plentiful ambition for the law.  They have supported it as a means not only of curbing corruption or its appearance, but they have advocated for expansive theories of corruption.  They have worried about the total amount of money spent politics, and about how it was spent—say, for negative speech that is wearing away the fabric of civil discourse. Essential to this ambition is a tolerance for ambiguity and a readiness to “fill in” the law where needed to fulfill these aims. The law on this view would come to nothing if the absolute clarity in the rules were a condition of enforcement. Lawyers and political competitors who feast on ambiguity, manufacturing it when needed, would eat away at the core of the law and not leave much behind.

This clash has intensified and now rages over the issues that would seem the relatively easier ones to dispose of.  If the FEC can’t make headway on transparency issues, then there is no hope for the rest of the mission.  But at a time when the United States Court of Appeals for the District of Columbia posits that the” extra-constitutional value” of transparency is incompatible with the fully constitutional right of free speech, it should not be surprising that disclosure has lost its once relatively privileged place in the debate. Now, rather than a policy objective to which adversaries can repair for the rare accord, transparency has become for the one side a new expression of insatiable regulatory ambition and a repository of dangerous ambiguities.

There is no obvious path leading out of this stand-off, and least likely one that the current Commissioners, snapping at each other across the divide, will help find.  Smith may have a good point that the enforcement process designed for assigning liability and assessing penalties is not a promising forum for constructive bipartisan engagement.  But the conflict now disabling the enforcement process will, as it has, spill over into its rulemaking and other functions.

The problem here is bigger than a legal argument at FEC about precedent and the role of “intent.”  More articles about this and other examples of “dysfunction” at the FEC are pointless.  If there is to be change, some movement toward agreement on the basic question of statutory ambition, it seems clear it will have to come from outside the agency.  In the matter of transparency, there have been proposals, here and elsewhere, intended to advance a useful discussion of the reach or limits of statutory ambition, and there will be more.  As the FEC has demonstrated in the LLC spat, it is not in a position to contribute much.

In the meantime, the agency can attend to basic housekeeping and assure that the rules on which they do agree are clear, consistent and administrable.

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