The FEC and the Fox News Debate

July 1, 2016
posted by Bob Bauer

The FEC cannot apparently do enough to make its critics look good. The problem is not, of course, that the FEC as a whole, as a unified body, is taking action that invites complaint. It is the absence of constructive cooperation among the Commissioners when it seems that it should be possible. No one comes off well. And it all turns out worse than necessary. The Fox News Debate case is the most recent example.

It starts with the ostensible news, apparently actively promoted by one of the Commissioners, that the FEC had voted secretly to “punish” Fox News for expanding one of its sponsored Presidential debates to include more rather than fewer candidates. In fact, the FEC had to consider a formal complaint brought by an excluded candidate who was perhaps understandably miffed that he seemed to be the only Republican not permitted to take the stage in an August, 2015 debate, which involved a main event and an “undercard,” featuring seventeen candidates. The FEC did not go chasing after Fox: it was stuck with the task of resolving the complaint. And it always votes “in secret,” under statutory procedures, with the results publicly released later.

To address the complaint, the FEC had to apply the rule governing a media organization’s “staging” of candidate debates. These rules have been around for a long time—too long perhaps, and a reconsideration and revision may be long overdue. But the rule is the rule, and the General Counsel prepared a memo for the agency that found that it had not been followed. Rather than apply “pre-established objective criteria,” to the determination of which candidates would be invited, Fox improvised. It twice adjusted those criteria to maximize the candidates who would be included. And it freely admitted that it had done this “to include and accommodate” the large field.

Of course, the conclusion that this amounts to a violation of law seems more than a little peculiar. Fox was not engaged in the conduct the rule was concerned with: rigging the rules to favor particular candidates over another, which would be a form of prohibited corporate contribution to the golden circle of the included. For all practical purposes, Fox was dispensing altogether with any criteria for selection. As it happened, it still managed to leave out the complainant. After all, any criteria at all, even ones barely worth the name, will leave someone out.

The Commissioners could not agree what to do.  They could neither agree that the rule should be enforced, nor agree that it shouldn’t. Commissioner Weintraub made the sensible suggestion that the FEC pass on the case in the exercise of its “prosecutorial discretion.” This is a way of acknowledging an apparent or “technical” violation but concluding that the FEC won’t, and for good reason, pursue it. Five Commissioners would not support this resolution. Apparently, the Republicans would not concede even the technical violation, and two of the Democrats did not want to agree that the rule should go unenforced.

The Complaint then failed for want of four votes to proceed or to dismiss. One of the Commissioners then rushed off, not helpfully, to advise friendly press that First Amendment freedoms were under unprecedented assault.

The Complaint’s failure was the right result. The FEC should not have enforced against Fox; it should have found a way to decline to do so, as Commissioner Weintraub suggested, and it could have provided a clear explanation that the candidate debate rule doesn’t sensibly apply to this case, perhaps together with a determination that the rule should be reviewed and perhaps revised in a new rulemaking. That would have been constructive and understandable, but not usually how things work at 999 E. Street N.W.

Tags: ,

Leave a Reply