It seem unfair that just holding a hearing subjects the FEC to criticism and ridicule. The agency was acted entirely reasonably in inviting views on what it might do, if anything, in response to the McCutcheon case.  So what followed was predictable: the usual strong divisions were expressed and anyone hoping for a clear picture of the problems of campaign finance and how to address them was bound to be disappointed.  The FEC is not the culprit here: it only hosted the discussion and is not responsible for its content. It was a hearing.

The Federal Election Commission is about to hear from a varied community of observers and participants who have views of what it should do—or not—after McCutcheon.   All the witnesses are aware that there are major, lines-drawn-in-the-sand disagreements within the agency over policy and authority. They know, from the start, that proposals to toughen rules on, say, earmarking, have a slim chance of success. But still the ones who favor new, more muscular regulation make their case. But they don’t make it in all the same ways, and in the differences lies the chance to make the best use of the advocacy they know will only get them so far. 

To Michael Malbin’s credit, he is taking seriously the political parties’ complaint about the terms under which they must compete for resources and influence with “outside” or independent groups. He accepts that a “rebalancing” is in order, and he proposes a compromise: more room for parties to coordinate their spending with candidates, in return for tighter enforcement of coordination rules against independent expenditure groups. He calls this a “third approach” to reform that which rejects both full de-regulation of party spending and any frontal challenge to the constitutional protections for independent spending.

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

It may have been legal, or perhaps not, depending on the facts, which are so far not fully known.  But the use of  Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law.  The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law.  Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.