Critics of campaign finance enforcement, or the lack of it, continue to be infuriated by the FEC’s record of deadlocks in major cases, and they are further troubled by the obstacles to judicial review.  When complainants stymied by deadlock appeal to the courts, they must still overcome the “deference” generally granted to the agency’s expertise, except where the law is clear or the agency is acting arbitrarily.  In these cases, the courts review the agency’s action by examining the stated position of the Commissioners voting against enforcement.  This is the so-called “controlling group” of Commissioners—the ones whose refusal to authorize enforcement controlled the outcome.

Two FEC Commissioners, Ann Ravel and Ellen Weintraub, now argue that this is all wrong, and have called for the courts to reconsider the process by which deadlock decisions are reviewed. They want an end to the “controlling group” analysis; the courts, the Commissioners contend, should review deadlocks on a de novo basis. So if the FEC dismisses a complaint because the Commissioners cannot agree on what sort of an organization constitutes a regulated “political committee,” the court would take it from there—disregarding the Commissioners’ disagreement and proceeding to judge the issue from scratch.

Commissioners Weintraub and Ravel dispute that agency expertise is relevant to judicial review of deadlocks.  Deadlock is inaction, the result of disagreement among the experts.  In other words, the deadlocked agency has rendered no expert judgment; the Court has nothing to which to defer. Worse, the Commissioners argue, the effect of deference on the basis of the controlling group’s position is to reward partisan or ideological obstructionism. All in all, complainants entitled by law to judicial review are put at a grave disadvantage by the doctrine of “deference” applied to deadlocks.

In the progressive critiques of the current state of campaign finance, the view of the role of the courts is inconsistent. These Commissioners want more intervention by the courts, while at about the same time, Rick Hasen believes that keeping cases away from the Roberts Court should be the overriding reform objective.  We like the courts when the courts happen to be ones we like—as is seen also on the other side of the debate, in the new-found enthusiasm for “judicial activism.”

The immediate cause for the Weintraub-Ravel call for greater judicial involvement is an FEC deadlock  that Hasen would surely not want before the Roberts Five:  the question of when a tax-exempt “social welfare” organization like Crossroads GPS should be treated as a fully regulated political committee.  Of course, as agency officials, Weintraub and Ravel are supposed to worry about the law as it is written and the requirements for a functioning agency, and not about the effects of their best judgments on particular cases or parties.  But they do worry about particular cases and parties, as in the matter of Crossroads, and their hope for better outcomes in the courts is not one that an astute observer like Hasen would share.

But even if no heed is paid to the identity of parties and issues, the Ravel/Weintraub argument is constructed around a questionable view of when the FEC’s “expertise” is properly recognized.  If the experts on the agency disagree, it does not follow that they have cancelled each other out and nothing relevant to a judicial decision has occurred.  It may signal only that the decision was difficult.  And if it was difficult for the administrative agency experts, it will be just as difficult for a court lacking the same claim to “expertise.”  Time after time, in fact, in Citizens United and before, the courts have been criticized for a shallow understanding of the political process and the workings of campaign finance. What then is gained from dismissing the significance of expert indecision and asking judges to force an outcome with much less to go on?

At the end of their statement, the Commissioners suggest another reason they or others may have for moving courts into a more active role on deadlocks, and that is the need to police partisan and ideological behavior among Commissioners.  The problem to be addressed would not be disagreement among experts, but rather a sort of bad faith getting in the way of truly expert judgment “on the merits.”  The courts are freed from any obligation of deference and must step in.

This is a hard to demand to make of the courts. Those who believe that the courts themselves have become political or ideological in their decisions on these issues will be loath to trust them to correct the same tendencies attributed to the FEC.  There is plenty of distrust to go around, and no consensus on where to go to escape it.  At any rate, objections to putting the courts in this role don’t have to depend on morbid suspicion of judicial or agency motives.  The entire question of what counts as pure politics or ideological inflexibility amounting to bad faith is never answered to anyone’s satisfaction in arguments about campaign finance. What is ideology to some is principle to others, etc.

Commissioners Ravel and Weinraub are understandably frustrated that the FEC can’t resolve the hard issues on a consensus or by decisive majority. But they are hard issues, and the disagreements are found outside the Commission, too—among scholars, think tanks, commentators.  And the same is true for the courts, the Supreme Court in particular, where, reliably, five look at these questions one way and four in another.  Congress is unable at present to address these questions, and the Senate majority, moved  by the same concerns as Commissioners Ravel and Weintraub, has largely given up on a legislative solution and is pushing for a constitutional amendment.

Amid all this uncertainty and division, there is no easy way to break the  stalemate, and on the issues that really matter, an expanded role for the courts and a diminished one for the FEC won’t help.