Thoughts on the FEC and Its Troubles

It is impossible to believe that the arguments over FEC and its performance must remain at the present and very low level. Nothing constructive can come of this, a shouting match in which one side poses 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 causal 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.

(6/26/09) Read More

What is New at the Federal Election Commission

The Republican Commissioners and the Meaning of the Deadlocks at the FEC

Robert F. Bauer

(An abbreviated version of this presentation was delivered at a BNA Conference panel on developments in campaign finance law)

The Federal Election Commission has lived with a mixed reputation since its first year—if one concedes that it is mixed. On both left and right, on the Hill and in the press, it has found few friends. Its destiny was not popularity: to have a fan base, it would have to regulate wisely, neither too much nor too little, and in doing so, it would have to succeed where, as many see it, both the Congress and the Supreme Court have failed.

It is an agency that is little understood, a misunderstanding in part the result of the small number of people who even try to understand it. This limited understanding is evident now as the FEC enters a new period of controversy. A deep division is apparent in the agency, separating three new Commissioners, appointed from the Republican ranks, from their colleagues. This division shows up in enforcement case "deadlocks"—3-3 votes, resulting in no decision being made—but also in stalemates that develop over audits and over regulations long in the works and pending, but not receiving, final approval. These divisions have raised the question of whether this conflict is exceptional, or just another example of an agency, foolishly structured for partisan deadlocks, that is ill-suited to the mission of campaign finance enforcement.

(5/18/09) Read More

Brad Smith for the Defense (of Deadlocks)

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.

(4/14/09) Read More

Conflict at the FEC

The FEC normally does not get a wealth of press and the little it gets is rarely good. The story-line we now have, of intractable disagreement and ideological conflict, is not new, but it has become starker.

Only a short time ago, after all, the FEC was stuck without a full membership and unable to vote. With Commissioners at long last in place, the facts have changed while the conclusion—that the agency cannot act—is once more the same. Figuring out what this means, and what is anything can be done about it, are the next requirements, if recent experience is to be put to productive use.

(4/13/09) Read More

Varieties of Reform of the Federal Election Commission

The frustration expressed by the reform community group, in their letter on the FEC, is genuine: who can doubt it? For years, the complaints have been repeated, and the rhetoric varies hardly at all. "The agency subverts the law"; "Congress pushes for appointees it can control"; "this agency must go, for the sake of real enforcement": this is the litany recited on each occasion that the agency and the reformer community are at odds—which is often.

(2/16/09) Read More

Also...

Reform Community Expresses Concerns about the FEC 2/12/09

Bundling Rules and Reasonable Disagreement 2/5/09

The FEC Explains Itself, on the Bundling Rules 2/4/09

Politics (and FEC Enforcement) Make Strange Bedfellows: The Soros Book Matter 1/29/09

Von Spakovsky for the Defense (of the Bush Justice Department) 1/28/09

The Republican Commissioners' Statement on the November Fund--and the State of Campaign Finance Doctrine and Enforcement 1/26/09

The Republican Commissioners Reply, in the November Fund Matter 1/23/09

Waiting for Further Explanation from the FEC 1/21/09