Norton’s resignation as FEC General Counsel was the opportunity, promptly taken, for the reform community to complain about the agency.  Matthew Mosk, "Resignation of Lawyers At FEC Raises Concern," Washington Post (Jan. 18, 2007) at A21.  It could not be that Norton just left for private practice.  In the face of Norton’s express denial, it is said that the departure signifies that the "influence of the general counsel has clearly diminished."  Commissioners, apparently misconstruing the significance of their appointments, now insist on the final word in regulatory matters.  
  
     All hell is breaking loose.  Commissioners are running the place.  Staff is being treated like staff. 

     This is fairly standard argument for agency critics whose plan for restoring public confidence in the political process apparently requires endless attacks on Members of Congress and administrators for conspiring against the impartial administration of the laws.  This is how disagreements over law and policy are often enough depicted:  as a contest between reformers, standing for what is right, and their adversaries who exemplify what is wrong.  Today more than ever, it is a picture out of date and its message has staled.  It exposes the age of a movement repeating arguments sapped, by decades of overuse, of any real power.

     The FEC today, for example, is hardly an agency of hacks in desperate need of "professionals" to make their decisions for them.  Most of the Commissioners have years of experience with the law; those with less history with campaign finance are lawyers fully capable of grasping the issues presented for their decision.  There is no reason to fear that they do not draw on the work or recommendations of their staff—Norton says specifically "I’ve had as free a hand as ever to give the Commission unvarnished advice."  But the point reformers would like to make is that Commissioners, disabled by the politics of their appointments, should defer more to the more objective staff readings of the "law."  Their wish is not that the Commissioners solicit the advice, but that they must take it—since they cannot be trusted to decide wisely, in the public interest, on their own.

     Behind this claim is the oversimplified view that, on the questions before the agency, there is a right and a wrong answer.  The reform community does not choose in shades of grey.  Time has been unkind to this way of looking at the world.  As noted yesterday, in the posting on Kos’ call for a reexamination of progressive thinking about campaign finance, the growing complexity—and consequently, opaqueness—of the law does not admit of simplistic judgments about good and bad interpretations vaguely linked to some claim about what the "public interest" requires. 

     The "netroots" learned this unforgettably in the proceedings on internet regulation.  And the rules eventually produced, by and large well received, were produced by the hard and good sense of Commissioners whose judgment proved superior to that reflected in at least one staff draft.  

     At any rate, the reform organizations and their allies have little to complain about.  Their influence over campaign finance law, while waning, remains secure enough—even though Commissioners insist on doing their jobs.  The courts so far give reform claims against the FEC a generous hearing.  A handful of organizations, in alliance with their Congressional allies, have forced constant re-writing of the McCain-Feingold rules.  Their access to the editorial pages of major papers—one in particular—is unrivalled. 

    Anyone searching for reassurance on this score need only have read the Court of Appeals’ decision last week in the CREW case.   There it turned out that this organization did not have standing to challenge the dismissal of a complaint—involving a corporate contribution—from a tax-exempt, no less—to Bush-Cheney ’04.  The Court concluded that CREW was seeking, in effect, to enforce the law.  But, of course, the Courts in this Circuit have validated the standing of reform Members of Congress—represented by reform organizations—to object and compel the re-writing of McCain-Feingold implementing regulations.  In the world in which different interests vie for control of campaign finance, reformers and their Congressional supporters seem to hold their own.

     But all this aside, a word of appreciation should be reserved for the resigning Norton.  He was reserved in dealing with the community outside the agency—both press and bar.  Norton did not seek out the limelight.  But he made his mark.  He was well-respected for his professionalism, sound lawyering, and good sense, and he and his deputy will now add to the depth and quality of the private bar in this field. 

Bob Bauer