Deadlock and Ominous Uncertainty at the FEC

May 23, 2016
posted by Bob Bauer

The FEC has once again deadlocked on an enforcement case and left an important question dangerously open.  Months ago, the FEC could do nothing useful with a case about the use of LLCs to make contributions.  Now it is inviting trouble, and not for the first time, with a case about how hard a corporation may press its employees to support the employer’s political program.

In the recent case, the FEC was forced by the usual 3-3 division to dismiss a complaint that a company pressured employees to make political contributions to its PAC and favored candidates.  The question before the agency was whether to investigate. There were reasons, including internal company documents.  In one of them, the company advised managers that “we have been insulted by every salaried employee who does not support our efforts.”  There was a press report recounting the experience of unnamed employees with coercive practices, and one employee put her complaint on the public record as part of a wrongful termination action.

It cannot be known if, on investigation, the FEC would have found enough to support a conclusive finding of violation.  The dissenting Commissioners who declined to support further inquiry may have had their so far unexplained reasons.  But with the dismissal of the Complaint and nothing more heard from the agency, the regulated community has a fresh signal of either Commission paralysis on an issue of central importance, or of ominous possibilities now available to employers in soliciting political contributions from their eligible managerial ranks.

Is it now clearly OK to advise managers and administrators that their failure to contribute would be “insulting?”  Lawyers who look to enforcement cases as “precedent” may have to tell their clients—the ones eager for aggressive line-drawing—that the FEC has not clearly ruled out the use of what one company official referred to as “colorful language” in pushing hard for contributions.

As in the LLC case, the FEC could avert major confusions, and temptations, by putting out guidance on this and other aspects of the rules.  It could counsel against misunderstanding what the disposition of a particular enforcement case might suggest about the law.  It could restate the rules against coerced political giving and indicate how, as a matter of policy priority and interpretation, it would expect to enforce them.

And the fundamental issue here—the degree to which the law protects the voluntariness of employee political involvement– is about more than money.  The agency has already passed on the question of whether a company (as it happens, the same company) can require its employees to attend a political rally. Another deadlock, and more uncertainty.

The FEC is somehow unable to resolve its differences in particular enforcement matters involving major, sensitive issues. Who is to say what is going on—something in the facts of the case, the effects of internal bureaucratic struggle, or ideological or political sensitivities or interests?  But the agency could keep the disagreements or conflicts within the case itself, and act to prevent unnecessary confusion about the law and erosion of the incentives to comply with it.  On this question of how far an employer can go in recruiting its employees for political activity, the FEC should feel some urgency to make itself clear.  It could do at least this much of its job.

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