More balance in the public and press discussion of campaign finance issues would be desirable. This last week the FEC held a hearing, and whatever press coverage came out of it was largely devoted to belittling it.  And then there was more of the same:

The government brought a criminal coordination case and extracted a plea, and this was immediately advertised in professional reform circles to be a momentous turn of events.  The New York Times added the note that perhaps now a “light” would be shone on the dark alleys where coordination flourishes.  The regulated community was supposedly on notice that the Super PAC jig might be up, and that punishment could be expected at last for the misconduct the FEC was habitually ignoring.

This is all a bit much. The announced prosecution and plea agreement shed little light on any of the key questions about “coordination” in the Super PAC era.  Assume the facts as reported, and the activity at issue would be illegal on any understanding of what constitutes coordination—now, or any time since Buckley.  This was a case, apparently, that involves a campaign manager’s use of an of alias to mask his involvement in directing outright independent expenditures on behalf of his candidate.  The committee set up as “independent” was one he had established. It is reported that he knew he was violating the law. He was also, news accounts suggest, making money off this scam.

None of the difficult issues in this field are closer to resolution, none of the challenges for enforcement are any more manageable, as a result of this case.  It is not a case about “winks and nods” or sophisticated signaling from the candidate to her independent supporters. It is not about friends or former staff of a candidate running an independent committee, or the allowances under controversial FEC rules and Advisory Opinions for engaging the candidate in support for Super PAC fundraising.  As the DOJ release suggests, and as the reporting tends to support, the prosecution is about blatant disregard of legal standards by someone reportedly well aware of his culpability.

The violation of law here was clear; there were no constitutional questions presented by criminal enforcement. The same cannot be said about the description of the problem, and the remedies proposed, in the typical arguments about Super PACs and their independence—Super PACs, that is, that are not run by a candidate’s campaign manager using an alias and skimming off the top.

There were still be misleading suggestions that this sort of thing is happening all the time and the FEC won’t deal with it. Impatience will be expressed over the FEC’s refusal to solve by administrative decree all of the frustrations over Super PACs.  As I noted in the course of testimony last week before the FEC, the Commission will not agree on aggressive steps for addressing this issue, and if it did—for example, by adopting certain proposals that would limit the number of candidates a PAC could support– it may well lose. This suggestion is neither defeatist or celebratory. It is realistic.

Rick Hasen replied—tongue firmly in cheek— that there is nothing to worry about: the FEC will not have the Republican votes to take “productive” action.   It is a question, though, on what is deemed “productive”. Hard-charging agency action on constitutionally difficult issues, resulting in legal challenges and years of litigation and regulatory uncertainty, is not by all perspectives especially productive. There are other steps, highlighted in the testimony, on which FEC agreement would be possible and its authority generally unquestioned: strengthening and clarifying disclosure requirements and guidance, and streamlining the enforcement process.

Why should the FEC not do what it can do, and let the arguments over complex law and policy be settled where in the end it should be—in the Congress, after which the courts can have their say?

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