The Federal Election Commission is about to hear from a varied community of observers and participants who have views of what it should do—or not—after McCutcheon.   All the witnesses are aware that there are major, lines-drawn-in-the-sand disagreements within the agency over policy and authority. They know, from the start, that proposals to toughen rules on, say, earmarking, have a slim chance of success. But still the ones who favor new, more muscular regulation make their case. But they don’t make it in all the same ways, and in the differences lies the chance to make the best use of the advocacy they know will only get them so far. 

An example:

Both Professor Richard Briffault and a reform group consisting of Democracy 21 and the Campaign Legal Center are worried about single-candidate Super PACs. The donor knows that all her money will be spent for the candidate she supports; and so does the candidate.  They contend that the “independence” of the PAC’s spending does not in this situation eliminate the risk of corruption. Adding to the problem is the involvement in the PAC of individuals with ties to the candidate.

Professor Briffault presents the Commission with a thoughtful analysis he previously published of why independent spending doctrine and related “coordination” rules established in the Buckley era is coping poorly with the reality of Super PACs. It ends in a proposal: to establish rules for small PACs supporting five or fewer candidates that subject them to rigorous coordination rules. Doubt has been expressed here that this is advisable or feasible. But Briffault lays out a case for change in the law or rules, and it is a useful addition to the record.

The reform group gets briskly to its point—that the Commission rules written years ago give it ample authority now to end single-candidate, independent spending Super PACs. They state that the rules “clearly prohibit any contributor who gives the maximum amount to a candidate from then giving more to a single candidate independent expenditure-only committee (i.e. single candidate Super PAC) that makes expenditures in support of that candidate.” (emphasis added).  Democracy 21 and the Campaign Legal Center, Comments re REG :2014-01: Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (McCutcheon) (January 15, 2015) at pp. 3-4.  The Commission has simply “refused” to do its job, “sitting idly by.” Id. at 4.

This is a bold claim, and it is fair to characterize it as highly implausible.  But a wing of the reform community has been insisting for a while that at this moment, on its own, the FEC can right all manner of wrongs and fill in where the law is lacking. The reform groups refers to mere “modifications”, “clarifications”, “updating” and “strengthening” of existing rules to accomplish the ends they have in mind.  Id. at 1, 5, 22.

To be sure, from time to time, a reform community complainant persuades a judge who is equally frustrated with the perceived shortcomings of campaign finance law to demand Commission action on one issue or the other. But overall, time has run on the argument that the FEC has the authority but lacks the will to achieve the major changes demanded by Democracy 21, the CLC and others.

The Commission hearing to receive views and information on law and political action post-McCutcheon is a productive exercise, and its utility does not depend on the promulgation of aggressive new rules on Super PACs or any other issue in campaign finance. Professor Briffault has made a constructive contribution to the record on the advent of Super PACs and the questions from his perspective that their operation and proliferation raise. Democracy 21 and CLC want to keep things simple when, in fact, they are complicated: they are shopping an argument that has few buyers and that will not advance the discussion.