It is impossible to believe that the arguments over the FEC and its performance must remain at their present and very low level.  Nothing constructive can come of this, a shouting match in which one side stands as the defender of constitutional values and the other holds aloft the banner of law enforcement.  Observers tend to fall out along the same battle lines.  Surely, arguments this simplistic must each be in part, and in serious measure, untrue.  And even if there is any truth in the standard portrayals—if Democrats are too casual in the treatment of concerns with due process and limits on agency action and the Republicans take enforcement demands too lightly—each Commissioner must recognize that managing this conflict between enforcement objectives and constitutional limits is a large part of their responsibilities and they must keep trying to do so.  Recognizing this, each would have to accept that to really try—to have this work—they need to guard against letting their guard down and permitting their jurisprudential or ideological preferences to pull them too far in any one direction.

     In other words, from this perspective, all the Commissioners are in the same boat.  It is not an easy job, however much others would like to say so.

    The cry against the agency now is that it has collapsed into a series of deadlocks, and that these stalemates prove that something is seriously wrong, primarily with the performance of the Republican Commissioners.  It is true that something is wrong, but to judge it from the deadlocks alone, in cases very different one from the other, is a superficial pass at the problem.  Disagreement can occur; the existence of disagreement proves only that there was disagreement.  If the objection is that the disagreements are to be faulted because they block affirmative enforcement, with no violation found or penalty assessed, this also barely advances the analysis.  For the default position on any tie vote cannot be that those seeking to find a violation and collect a penalty are presumptively on the right side of the issue. 

     The problem is not that there are three-three votes, normally along party lines.  The number of deadlocks is, in and of itself, something of a sideshow.  As the law becomes more developed and the constitutional terrain more complex, it is not surprising that the incidences of deadlocks increase.  I have been told, though I have not independently verified, that the Commission has deadlocked some 22 times out of roughly 350 matters.  

     While helpful to maintaining perspective, the numbers don't add up to much of an answer to the question of what the deadlocks do or do not mean.  The more serious problem is that the disagreements reflected in deadlocks are not being squarely brought out or constructively managed.  This better question to be asked is: once an issue exposes disagreement, and if the disagreement cannot be resolved in the particular case, what happens next?  Commissioners can disagree, often, on the law, but this need not mean—should not mean—that this is where things are left. The work of the agency should be able to continue, with each side of an issue considering whether the sources of disagreement in particular cases, based on good faith and reasoned disagreements, can be turned to good use.  If this is happening, it is not obvious, and the ill-feelings the Commissioners apparently have begun to harbor toward one another, as exhibited in yesterday's open meeting, tend to reinforce the suspicion that relations have soured at the cost of collaboration toward achievable common goals.

     It is important, in getting at the heart of the problem, to consider the individual cases that have provoked controversy.  Working from there can help shed light on why disagreement, or deadlock, has come to seem dangerous, as normally it should not be, to the credibility of the agency. 

The reasons for clarifying rules: reasonable concerns on the Democratic side. 

     Recently, and blessedly, the Commission mustered a bare majority for not finding Speaker Pelosi, as a candidate, in violation of rules against the acceptance of corporate contributions.  Matter Under Review 6020.  She had participated, with Newt Gingrich, in a series of commercials featuring unlikely allies joined in support of sound climate change policy.  The ads ran nationally, but also within her district in an election year, and although the ads contained no electoral message at all and the Speaker was not a party to the ad placement decisions, it was contended that she may have been the beneficiary through this advertising of a coordinated electioneering communication. 

     The three Republican Commissioners, joined by one Democrat, concluded that the law was not sensibly applied in this circumstance.  But they recognized that this was an act of regulatory dispensation:  the special circumstances motivating them were not recognized in the law which, by its terms, applies strictly. The Republicans have sensibly suggested that the Commission, rather than merely willing an interpretation in this one instance, should fashion a new rule to make sure that future cases like this were settled, on clear standards, the same way.  In other words, officeholders should be able to appear in bona fide charitable advertising without running into trouble under the "coordination" and "electioneering communication" rules.

     This is a good reason to clarify a rule—to make exceptions where they are justified by an intelligent reading of the law informed by sound policy.  But there are other good reasons to clarify rules, such as the intention to tighten the law against abuses.

     So It was not helpful to the agency's image when the Republicans leaned hard on ambiguities in the law to excuse the Romney Presidential campaign from an enforcement matter but without any interest in the implications of this decision for the agency's ability to enforce the law in the future.  Matter Under Review 5937.  To be clear:  the Republicans might well have a defense for the vote in the particular case, but it raised major issues for the enforcement of the law, and the Republican Commissioners did not seem motivated, as in the Pelosi case, to look beyond the individual case to a resolution of those issues.

     In the Romney case, a supporter chartered an aircraft to travel to a volunteer fundraising phone bank event sponsored by the campaign.  He did not travel only for himself:  he filled up the plane with Romney supporters who would join the fundraising activity.  The campaign was at least somewhat aware of his help:  apparently he and his party were met by campaign representatives at the airport and transported into town.  So did the substantial payment for the plan count as a contribution, well over the limit, to the campaign?  Democrats and Republicans then exchanged legal arguments over what the law actually required.  To the Democrats, it was clear: volunteers could absorb their own travel expenses if traveling for their own purposes, as to a fundraising dinner, but the expenses become the campaign's if the volunteer is traveling with campaign authorization to provide a specific service.  For the Republicans, the law was unmanageable on this analysis:  when its events drew a crowd and volunteers answered the call, campaigns would be stuck with the transportation bill for the help anyone who chose to offer it.

     The arguments in the Romney case were packed with fine distinctions—between the volunteer attending an event but paying his own way to make only his own contribution:  this was captured in the distinction between traveling "in behalf of" and "on behalf of" a candidate.  One can make of these arguments what one will.  But is clear that if the law is not now clear, it should be, since no rule on this point leaves a sense of a large hole in the law, on an issue of consequence.  The payment of charter transportation in aid of a candidate fundraising project does fairly raise a regulatory issue.  But there, unlike in the Pelosi case, the Republicans were happy to let it all well enough alone, even declining to support a "limited scope" investigation to further develop the factual record.  Sometimes tightening the law is just as compelling a reason for clarifying the rules as loosening the law. There is as much reason for the Commission to return to this issue, as there was for re-re-examining the rule at issue in the Pelosi case.

Commission process:  reasonable concerns on the Republican side.

     It is clear that the Republicans have bones to pick with the way the agency runs.  This is emerging more clearly than before, as in the long Statement of Reasons in the Sekhon "best efforts:  case that was released Wednesday.  And the issue surfaced, in a contentious manner, in the battle over the disclosure of General Counsel recommendations, which broke out in the Romney case but involved a disclosure of the Counsel's analysis in the November Fund case.  And here the Republicans have sound points.

     One such point is that the Commission should be careful about levering settlements out of respondents when the law of the case is unclear but the respondents lack the resources (or political capacity) to resist.  This was the point of the November Fund disclosure:  the General Counsel was aware that the agency was treading on slippery ground, perhaps unable to defend its position before a Court.  Respondents—particularly losing campaigns, but also major actors burdened by political considerations—may not be able or willing to put up a fight even when the agency's enforcement position is not well founded.  They should not be put into that position.  The law is not properly or clearly made, advanced, or enforced in this fashion. 

     Another point is disclosure: yes, the respondents and all the rest of us should know what the General Counsel recommended, if the General Counsel's recommendations was important to the Commission's, or any Commissioner's, decision.  How the disclosure came to be made in the November Fund case, thrust into a footnote in an unrelated case, is another issue altogether.  It may well have come in the wrong place at the time, and in the wrong way (see below). But with due allowance for regular process in resolving issues like this, the better view is that this information should be known.  The argument against disclosure, based on attorney-client privilege, seems suspect, since the disclosure bears on how the agency actually reached and will explain its decision.

A way forward?

     In the Statement of Reasons in the Sekhon case, Matter Under Review 595, the Republican Commissioners explained how, from their point of view, they came to block an agreement reached with a failed Congressional candidate.  In short, their position is that the pending fine was disproportionate to the offense; the proceedings dragged on long past the election; the candidate was particularly ill-equipped to navigate the Commission process which, for its part, is not friendly to those caught up in it; and the Commission had in at least one other similar "best efforts" case also, and without public protest, exercised its discretion in declining further enforcement activity.  Throughout the discussion is a suggestion that the Commission processes needed reform.  It is a strong performance, the strongest by the Republicans to date, and while it is an advocacy document having all the associated strengths and weaknesses, it raises important questions. It is an example of the value of a full and clear discussion of competing enforcement perspectives.

     In short, the Republicans in this case suggest that they are looking beyond the facts of the case to what it suggests about the reforms needed in the Commission process.  This is not, however, a one-way street.  The Commission should, of course, be strengthened in its capacity to operate fairly, in the management of the tensions between the exercise of regulatory authority and the protection of rights,-but it should have the capacity to meet its enforcement responsibilities.  The Commissioners presumably agree on this.  Now they should demonstrate that agreement.  Their job is to improve the agency's work in both its component parts: the protection of rights and the enforcement of law.  Difficult cases may result, will result, in disagreement.  It is the next step—in figuring out how to work through these difficulties—that defines the quality of the agency's performance.  Of course, the agency may eventually have to yield to constitutional or other limits on what it can do.  But it should not be seen to be giving up before the choices are fully explored: it should not seem to be a foregone conclusion that there is nothing to be done.

     The manner in which the Commissioners go about this work also matters to the credibility to the agency.  For example, as noted, the Republicans' disclosure of the November Fund material was not well handled.  It was thrown into an unrelated case and comes across as a gesture of defiance, leaving the impression with much of the regulated community that internal decision-making procedures are coming apart.  If the Republicans were convinced that there was no other way—that the material would never otherwise see the light of day—they should say just that and let the argument proceed along those lines.  But they did not say that, and so this form of disclosure has all the polish of a playground taunt.

     The Center for Competitive Politics disputes the importance of form:  they dismiss this, in criticizing Rick Hasen, as a misplaced attention to "etiquette".  Far more important, they argue, is the substance of the General Counsel's position and its relevance to the Republican Commissioners' position in the case.  But one can agree that there is importance to the disclosure while holding firm to the view that how an agency makes decisions and presents itself is also meaningful.  Is this not a point that, in this and other contexts, the Republicans themselves, and with justification, make?

     The open meeting yesterday was also an example of where the way forward is not found.  The occasional jibe, or quip, or even jab:  all fine, and maybe what the often drab subject matter needs to fill the seats.  But somewhat different and less harmless is heavy sarcasm and angry cross-talk.  While it may relieve the frustrations of the Commissioners, it does no service to the public presentation of the agency.  This sourness can overwhelm and undercut the value of all the work devoted to Statements of Reasons, including sharp performances like the Statement of Reasons in Sekhon, in which Commissioners endeavor to show that their disagreements are principled and their expression can be professional.

     The Commissioners' disagreements are now all too well established and, in many cases, to be expected.  Their responsibilities do not end there.

Bob Bauer      

Note: the firm associated with this site was counsel to the Speaker in MUR 6020.