More Dysfunction at the FEC

FEC logo screenshot

The Republican and Democratic commissioners at the Federal Election Commission (FEC) are locked in another public dispute.  While this has become depressingly routine, the agency’s inability to function at almost any level is no small matter.

The FEC is charged with enforcing our federal campaign finance laws but, in case you haven’t noticed, those laws are not being enforced.  Of course, the Supreme Court is doing its part to undermine the law in cases such as Citizens United v. FECand McCutcheon v. FEC by striking down key provisions that it had previously found constitutional.

But other important parts of the law remain intact.  In fact, when it struck down the ban on corporate expenditures and the aggregate contribution limits, the Supreme Court cited FEC rules it thought should prevent wealthy contributors from circumventing the remaining core prohibitions and limitations as sufficient to protect the public.  For example, the Supreme Court assumes that any group whose major purpose is influencing federal elections will be treated by the FEC as a political committee that is required to disclose the sources of its funding.

The Supreme Court apparently thinks that there is a rational and effective enforcement agency at work.  But, as the FEC continually reminds us, that just isn’t so.

This time, the fight began when the FEC split 3-3 over whether to find “reason to believe” that Crossroads GPS violated the law when it reportedly spent millions of dollars on political advertising in the 2010 election cycle without registering as a political committee or disclosing its donors.  This was not a vote over whether Crossroads GPS violated the law.  Rather, the dispute was over whether the agency would even investigate the issue.  While three commissioners believed an investigation was warranted, it takes four votes for the commission to take action, so the three Republican commissioners were able to block any investigation. By contrast, any four of the nine Justices on the Supreme Court—a minority—can force the Court to take a case and address the legal issues presented.

When the agency dismissed the case, it was sued by the campaign finance reform groups that had filed the original complaint.  The commissioners then had to vote on whether to defend in court the Republicans refusal to investigate, which would require arguing that the Republicans’ rationale for blocking the investigation was consistent with the law.  Vice Chairwoman Ann Ravel and Commissioner Ellen Weintraub, who voted to open an investigation, abstained.  (The Vice Chairwoman explained her reasoning in an op-ed in the New York Times.)

The three Republicans have now attacked Vice Chairwoman Ravel and Commissioner Weintraub for not agreeing to defend their position in court, arguing that the action of the two Democratic Commissioners “derail[s] longstanding Commission practice” and harms the FEC’s institutional interests.  (One of the three commissioners who voted for an investigation also voted to allow the agency to defend the Republicans’ refusal to investigate, so three Republican commissioners will again speak for the agency.)

It is hard to take seriously the Republicans’ complaint about commissioners not following previous practices or giving due deference to their views when their actions have consistently stopped the agency from enforcing previously agreed upon interpretations of the law or undertaking what had previously been routine activities.

In the past, even where some commissioners were ready to close a case without an investigation, they would often attempt to find a compromise to allow an investigation to go forward if three felt strongly that there was a potential violation.  Those days are long gone: Crossroads GPS is just one in a string of recent cases where the Republicans have refused to allow the agency to even conduct an investigation.

The “power of the three” is also routinely seen in rulemakings, or the lack thereof.  The Supreme Court’s decision in Citizens United that corporations have the right to make independent political expenditures potentially affects a number of long standing rules regarding whom corporations can solicit for contributions to their PACs, what political activity they can address to rank-and-file employees, how their executives can fundraise for candidates and whether or when a particular corporation owned in whole or in part by foreign nationals should itself be deemed a foreign national prohibited from spending money in U.S. elections.

While the “long-standing commission practice” has been to initiate a rulemaking to address such changes in the law, the FEC commissioners have been unable to do so in the four years since Citizens United because four commissioners cannot even agree on what issues they should put out for public comment.

Republican commissioners defend their refusal to go forward on a variety of matters by saying they are acting on principle.  Now, they are “shocked, shocked” when two commissioners cite their principles when refusing to vote to defend in court a position with which they firmly disagree.  Voting to defend the Republicans’ reasoning for blocking an investigation of Crossroads GPS requires each Commissioner to state that they believe the Republican position is consistent with the law.  The Republicans cannot now expect the Democrats to defer to greater institutional concerns and accommodate the views of the Republicans when the Democrats know there will be no reciprocity for such an act.

This is not a new issue.   The law has long provided for judicial review of an FEC decision to dismiss a complaint in certain circumstances.  Intending to provide the FEC with discretion in deciding whether to launch an investigation, Congress limited judicial review to whether the FEC’s decision was “contrary to law.”  Where the dismissal is supported by at least four commissioners, it is official agency action and there is an official agency rationale to afford that deference.

When there is a 3-3 split that blocks an investigation, however, there can be no official agency rationale adopted, since that requires four votes.  Nevertheless, in order to review those cases, the courts decided they would review the statement of the three commissioners who blocked the investigation to determine if their reasoning is contrary to law.  This affords the statement of three commissioners the same deference the court gives to an actual decision by four votes.  The only way a commissioner can avoid this outcome is to refuse to vote to allow the FEC to defend its inaction.  It may not be pretty, but it is an option the statute provides.

Some outside the FEC argue that the commissioners who voted to investigate should vote to defend the rationale of those who blocked the investigation.  First, it is suggested that they can do so and still remain true to their beliefs.  This argument fails to give any weight to the fact that when a commissioner votes to defend the rationale of those who blocked an investigation, she is saying to the court that she believes that rationale was not contrary to law.  That is a problem if the commissioner believes based on the facts in a particular case that the decision was contrary to what the law required.

It has also been argued that, as a practical matter, the interests of the agency and those who seek enforcement of the law would be better served by defending its non-enforcement.

When I served as General Counsel of the FEC from 1987 through 2000, I also believed that the agency was better served if it defended 3-3 splits that blocked an investigation.  However, that was at a time when most commissioners still made an effort to reach some compromise on cases and saw a 3-3 split as an occasionally inevitable failure of the system and not a useful policy tool.

In recent years, the Republican commissioners’ obvious lack of institutional concern and unwillingness to compromise on any issues they deem important has led me to change my mind.  The way the FEC is structured, asking commissioners to always vote to defend inaction resulting from a 3-3 split will make it even harder to seek enforcement of laws.  Since it will still require four votes to start an investigation, pursue an enforcement case in court, or appeal a loss, the three commissioners who have shown no willingness to compromise will have veto power over enforcement at every stage.  And when the FEC is challenged in court, the three commissioners who wanted to pursue enforcement will not have their views represented, making it appear they are fine with the decision to not go forward with the case.

Given this, it seems only consistent that the veto “power of the three” extends to defending the decision not to go forward on a case.  Of course, if the Republicans want to restore the old practice of commissioners seeking to find a compromise so investigations can go forward when there is serious evidence of a violation, the dynamics could change for those cases where, despite good-faith efforts, a compromise cannot be reached.

Truth be told, I wish there were a better position than the one Vice Chairwoman Ravel and Commissioner Weintraub have taken.  But at some point you have to say “enough is enough” and let everyone play by the same rules.  While I don’t think this will do anything to improve the current FEC, it may highlight the FEC’s complete breakdown as an effective enforcement agency.  In the end, Congress and the White House have to be held accountable for the fact that there will be no serious enforcement of the campaign finance laws until fundamental changes are made to the agency, including the appointment of commissioners who believe in the law and its enforcement.