A two-thirds vote having been required, a two-thirds vote was not achieved: only 55% supported the Hensarling measure, and so it failed.  Some Members opposing it may have been moved by Congressman’s Meehan’s argument on the merits; others by Congressman Franks’ objections to the procedure; and some by both.  Which argument proved persuasive is unknowable. 

      With the defeat of the measure, the FEC may, and surely will, assume that Congress is done with the issue for the time being, which leaves the agency to fend for itself.  There was a talk on the floor about a compromise. It is difficult to see how it would be constructed. Hensarling’s goal was to excuse the government from further involvement with Internet “public communications”; Shays’ and Meehan’s purpose was to preserve it.  A compromise assumes some points of agreement, even minor ones, on which a larger understanding could be built, but there is no evidence of any accord on any aspect of the issue. 

      The FEC will have to write the rules now, and it will also have the responsibility, without further Congressional guidance, to issue Advisory Opinions important to Internet politics, like the pending Fired Up request.   In the wake of yesterday’s vote, the writing of rules for the Internet—or the decision to forego them—has been left to court decision and administrative agency choice.  Congress can always return to the subject, but this will not be soon; and as time goes by, and as the rules develop and proliferate, any subsequent Congressional intercession will be denounced as an attempt to “roll back reform.” This will make still harder the business of reasoned discussion and reasonable decision.

      This suggestion—that any disagreement over campaign finance is one between those who support “reform” and those who oppose it—is one of the dispiriting features of the current debate.  It is meant to stop discussion before it begins.  By some mysterious judgment, the regulation of the political process is open to reconsideration and amendment only if additional regulation is required.  A proposal for less regulation, even for adjustments to ease the burden of existing regulation, is condemned as worse than unwise: it is depicted as one more covert act in a conspiracy to violate the public trust. 

      Any review of press releases in the last days will refresh the recollections of anyone who has forgotten how this works.  An example: Norm Ornstein’s column in yesterday’s Roll Call, in which he opens his attack on Hensarling with a reference to “the constant efforts by conniving sore losers to slip in proposals that would undercut and overturn the Bipartisan Campaign Reform Act.”  

      And, finally, there is the role of editorial press: Democracy 21 and other organizations ran an ad in Roll Call that excerpted editorials opposed to Hensarling.  Mr. Meehan, on the Floor, brought with him mounted displays, two of which cited editorials.  This is the part played by the editorial press in the well-tested machinery of reform:  it helps to stare down any congressional attempt to intervene as lobbying organizations and judges oversee the writing of administrative rules.

      In this process, a majority is not nearly enough to make a difference.

Bob Bauer