If the FEC is down to two Commissioners, unable to act, how much would it matter?  Matthew Mosk, "Senate Battle Over FEC Nominee May Hamper Agency's Ability to Act," Washington Post (Oct. 26, 2007) at A19.  This is a question Brad Smith asks, and it is a prospect that he seems to relish.  He thinks we might learn that the world would not end.  Congress is inviting this experiment as it deadlocks on confirmations and recess appoints near their expiration dates.

     The law would not be off the books, however, and so the experiment might be one with further criminalization of campaign finance.  With the FEC in paralysis, only one sheriff, the Department of Justice, would remain in town, on duty.  True, the DOJ can’t and doesn’t act immediately; but neither does the FEC.  Someone with a grievance, unable to bring it to the FEC, could bring it to DOJ.  It will be tempting to partisans to argue that the world did come to an end, and that criminal behavior is rampant, with the FEC out of action.  Adversaries could accuse one another of exploiting the void left by the disabled agency. 

     More routine consequences would include the end of various rulemakings, including most prominently those called for in the new lobbying law. The FEC has produced a draft of new rules for the use of "non-commercial" aircraft; another rulemaking proposal, for bundling, is due this week.  This would all come to an end if the FEC came to a stop like a broken watch.  Questions of significance under the new law would go unanswered, and, of course, the FEC, also short of the votes to issue Advisory Opinions (which cannot in any event be used as a substitute for regulations), could not fill in the gaps.

     Enforcement actions would stall.  This is not all that unusual for the agency, slowed by cumbersome statutory procedures and other internal limits.  A few cases on the border of statute of limitations would pose problems.  On the way out the door, the FEC could try to obtain tolling agreements—good luck there—and in other instances, the FEC might pressure for an end of the year settle and accelerate lawsuits to preserve its position if it is procedurally able to do so.  Other pending complaints would lie idle or receive as much attention as possible when only staff without Commission supervision (and votes when needed) could work on them.  Work would pick up once the FEC was back up and running. 

     Smith picks out the one area where the difference would be, in practical terms, dramatic, and the consequences unpredictable:  the FEC’s role in the Presidential public financing system.  Congress would be pressed to consider a solution, if it was not motivated to settle the question of the appointments.  In an election year, and when a number of Members of Congress are candidates for the Presidency, emergency Congressional attention to public financing would present rich possibilities of intrigue.  Some observers, considering only the effects on public financing policy, might believe that something good would come of it.  However the deliberation turned out, mere Congressional attention could set the stage for serious consideration of the issue in the next Congress.

     It is hard to believe that any of this will come to pass, more plausible that the Congress will resolve the deadlock over appointments.  If the FEC did come to a halt, however, it is not quite right to say that we would have the experience of unregulated campaign finance.  We would continue to have regulation, only without the support of the chief regulator.  Stresses on the regulatory system from the breakdown in one part would be felt in others.  This would be even more interesting, and we would learn even more, than if the system as a whole, the whole vast regulatory enterprise, would come to an end.

Bob Bauer