Brad Smith registers a considered objection to this posting on FEC deadlocks.  He says that deadlock is a decision of sorts.  The agency may have divided on a "close call," but it has still decided:  the “decision” is not to proceed with enforcement.  This, he argues, is no different than a decision by majority vote.  It just comes about via a tie, and the courts, on an appeal, have a rationaleto consider—that of the Commissioners opposing enforcement.  Smith suspects that the real concern with deadlocks, among reformers in particular, is that the result is not the one they wanted. 

    OK, true, to this extent: deadlocks may frustrate reform critics, and from time to time other observers, when a majority for enforcement is wished for but does not materialize.  A deadlock per se does not prove that the agency ignored the clear command of the law.  And I have said so in other postings.  For example:

Finally, a note on 3-3 votes:  these are greeted by many observers with something like despair, as if disagreement among Commissioners, along party lines, is a regulatory calamity.  One such deadlock after another, in cases simple and complex, would indeed be unfortunate.  But over the course of the Commission’s existence, this is not really how things go.  Disagreements culminating in deadlock arise just where you could expect them:  in cases where regulatory policy is controversial, for a host of reasons that include regulatory complexity, breadth of impact and, inevitably, political sensitivity.

     My point in the post discussed by Smith is that we may now be witnessing a struggle at the agency, producing types of deadlocks, not typical of the experience “over the course of the Commission’s existence”.   The question being considered is whether these deadlocks have become vehicles for expressing basic disagreements over the function of the agency or even, at bottom, the feasibility of its mission—not simply differences over “close calls”, on the merits. 

     On one view, it is important to distinguish the complex case, or the “hard” one, from a “close call”.  The close call is the decision that could go either way:  the law is not really clear, or it is not clear in application to the particular facts.  But not all of the more complicated cases, posing hard questions of analysis, are necessarily “close calls”, and the more the universe of such “close calls” is expanded, the more reasons Commissioners have for declining enforcement.  A Commissioner or Commissioners who categorically define all but the simplest cases as “close calls”, and who conclude that the close ones should be resolved against enforcement, have redefined what the agency should do and what the regulated community and the general public can expect from it.

     Now some good faith students (or administrators) of campaign finance regulation could well argue that its regulatory mission presses so hard on the First Amendment nerve that this is just how the agency should operate.  The enforcement docket will present more “close calls”; and in the view of these hypothetical Commissioners, the appropriate response in these cases will be a vote against enforcement.

     But, surely, this theory of administration would merit attention.  And it goes without saying that fine lawyers are skilled at showing that cases are harder than might first have been thought and therefore present “close calls” best resolved by having the agency modestly step aside.

     I was pointing out that something like this may be afoot at the FEC, and that if so, it would be in the interest of all to have the competing theories of enforcement brought more fully to light.  Brad’s points are well taken.  It is not clear that they address the questions about the meaning of deadlock now, on this Commission. 

Bob Bauer