The FEC normally does not get a wealth of press and the little it gets is rarely good. The story-line we now have, of intractable disagreement and ideological conflict, is not new, but it has become starker. 

     Only a short time ago, after all, the FEC was stuck without a full membership and unable to vote.  With Commissioners at long last in place, the facts have changed while the conclusion—that the agency cannot act—is once more the same.  Figuring out what this means, and what is anything can be done about it, are the next requirements, if recent experience is to be put to productive use.

     Critics of campaign finance regulation say there is no problem to solve, because a deadlock is still a decision.  There is no real deadlock: cases are still resolved, just not as those who preferred a different decision would have liked.  This is a clever defense, and in a technical sense, it is true: for a party filing a complaint over which the agency deadlocks has gotten a decision and can appeal it to the courts.  The agency has, in effect, concluded that someone else will have to decide the matter.  And courts do step in, and their footprints, on a number of high-profile issues, have been large.

     But this argument responds, in part, to an objection not really made.  For those observers angered by the agency’s deadlocks, the failing is here is that the agency should have decided the case—that it should be possible to rely on the Commission to apply the law to the facts when the both law and facts, and the fit of one to the other, are fairly clear.  Their point is that the agency is not being responsible when simply refusing enforcement for bureaucratic, ideological or partisan political reasons.  The option of judicial intervention, these critics argue, is no excuse: the courts should not be de facto administrators, resolving issues which the administrators shirked, and there are costs and of course delays associated with litigation that are incompatible with ordinary-course enforcement.

     On the other side, the defenses of the Commission have run into a different set of objections.  One is that the FEC does not deadlock all that often.  The more refined critique—that the agency deadlocks on “important” issues—begs the question of what we should consider “important”, but it also elides the larger point that it is precisely on important issues, normally the more complex ones, that disagreement and deadlock might be expected.

     Either way, no one wins.  Larry Noble, formerly General Counsel to the agency, rightly tells BNA that political actors who would like a stable, more or less predictable regime of enforcement may be unsure which conduct, in sensitive areas, is closely regulated and which let pass.  Kenneth P. Doyle, "Increasing Prevalence of Split FEC Votes On Key Issues Could Shape Next Campaigns," BNA Money & Politics Report (April 9, 2009).  At the same time, he says, those with high risk tolerance might gamble on their legal fates more freely, happy to exploit deadlock or the ever present possibility of it.

     Now, since the agency has for all of its history arrived at deadlock in some number of its cases, the question is:  is something about these stalemates, at this time, different?  There is a growing sense that this may be so.  While Commissioners may well have disagreed about the law in specific applications, and while this disagreement may have followed naturally from competing ideological, partisan, or policy commitments, there was in years past—at least much of the time—agreement about the agency’s role, its function.

     This is now less clear.  As the flap over the issuance of press releases illustrates (Matthew Murray, "FEC Deadlocks on the Rise," Roll Call (April 6, 2009)), the Commissioners now are unable to agree on what the press office should disclose about closed enforcement matters.  They differ over how to present the agency and what it should seek to achieve in this self-presentation.  

     This is a very fundamental difference, and it seems to be new.  In the past, there have been hints of this—but Commissioners seemed, overall, concerned about the FEC's score on various measures of administrative agency performance.  It fought its critics, but, to some extent, on their ground.  This may be changing:  this is not necessarily the terms of engagement that all Commissioners accept anymore.

     The Commissioners have spoken to these issues piecemeal—through specific enforcement cases and, most recently in the matter of press policy, directly to the press.  It is hard to make out, case by case or skirmish by skirmish, what the Commissioners believe the fight is about.  It would be helpful to hear more from them, in direct terms, about what is going on at the agency. 

Bob Bauer