The Court of Appeals is just very hard on the Federal Election Commission.  It agrees with the habitually critical District Court, one more time, that the FEC mangled the development of rules implementing McCain-Feingold. Unless the agency appeals to the US Supreme Court, it must, 6 years after the enactment of the statute, commence another round of revisions.  And the Court of Appeals does not stop there:  it also scolds the FEC for tardily raising a standing issue about Congressman Shays:  "we are disappointed in the FEC for raising this issue so late that Shays had no adequate opportunity to respond."  Opinion at 14.

     The FEC must have the feeling, the very strong feeling, that the Court does not think the agency up to the task, and that for this reason, it will be supervised all the way to the end, to a degree of detail and policy judgment that courts ordinarily and properly avoid.  The FEC should be forgiven for thinking so: it is right.

     On the one hand, the Court affirms that, in principle, "the Commission certainly has discretion in choosing exactly where to draw a bright line" (id. at 27) in crafting a rule; discretion to "leave a large grey area and fill it later through adjudication and advisory opinions" (id. at 32); discretion and indeed the duty to exercise "expert judgment to which we owe deference" (id. at 29).  It even encourages the Commission to build First Amendment judgments into the line-drawing it performs.  Id. at 21.

     Just at the point where these high principles are applied to the construction of rules, the Court decides that the FEC misses the mark.  In the coordination rules, the Court concedes that the FEC assembled data and made its judgment on those facts, concluding that outside 120 days prior to an election, for Presidential elections, and 90 days in the case of Congressional elections, it would not attempt to restrict "coordination" between candidates and others that fund public advertising of various kinds.  The FEC did not believe that the data warranted an extension beyond these time periods:  it did not find enough of this activity to make it worthwhile.  Some such coordination might take place in this unregulated zone, but what did occur was too slight in significance and quantity to make a difference.  The Commission, in short, drew a "bright line," and hoped in vain for deference.

     The Court disagreed, and the weight of its contrary judgment must depend in part, it would seem, on the superiority of its reasoning.  It is not easy to see this superiority.  Twice, the Court appeals to "common sense" (id. at 23, 24), which is the way arguments are avoided and not made. 

     The rebuke "don’t be silly!", which is all the Court can mean in this reference to "common sense," means little else than that the Court wishes to stamp its own judgment with the appearance of absolute obviousness.  It is clear to the Court that the Commission is creating an "enormous loophole"—though for this, over a period of six years, there has been no evidence.  And then the Court affirms, with a flourish, that it has both history and a better understanding of "human nature" on its side.  Id. at 24. 

     Take your pick, then:  the administrative agency, amassing data and making a judgment on a complex question fraught with constitutional implications, and a Court secure in its beliefs about what "common sense," "history" and "human nature" requires.  The FEC wins this one going away, largely but not only because the Court’s performance was exceptionally unpersuasive.

     What is going on here?  Over the years that McCain-Feingold has been debated, the courts have displayed increased confidence that they "get" the sneaky games with money that the law, focused on circumvention, was meant to stop.  Along with this conviction has come the certainty, derived from the daily and editorial press, that the FEC is in cahoots with parties and candidates to undermine the law.  The Court’s opinion is teeming with signs that this is very much at work in this case.

     And yet in the end, the superficiality of the Court’s reasoning—and the absence of any indication that there is a definable sphere of discretion left to the agency to do its work, safe from the intrusions of judicial "common sense"—demonstrates that this cannot take the law or the process by which it is developed to a good place.  This is, after all, an Opinion in which the Court sets out a dictionary definition of soft money, taken from the fourth edition of the American Heritage Dictionary (3), ("Political donations made in such a way as to avoid federal regulations or limits, as by donating to a party organization rather than to a particular candidate or campaign")—a definition suffering from incompleteness and technical problems, from sheer uselessness,  that would be graded harshly if appearing in an answer to a law school exam question.

     And it is further an Opinion where the Court writes that BCRA "authorize(s) candidates to solicit up to $20,000 per individual to fund state party GOTV and voter registration activities" (citing 2 U.S.C. § 441i(e)(4)(B).  Id. at 36).  BCRA does no such thing; the provision it cites does not apply to State parties at all.  The Court is in a poor position to direct the FEC in a proper understanding of the law when its own grasp of the statute is inadequate and cannot be strengthened by resort on crucial terms to the American Heritage Dictionary, Fourth Edition.

Bob Bauer