By petitioning their own agency for a rulemaking, Commissioners Weintraub and Ravel have found a novel way to charge their colleagues with fecklessness. Call it a populist gesture: they are stepping out of their roles as administrators and issuing their appeal from the outside, as members of the general public. They may have done all they could or intended to do with this Petition, which was to publicize their grievances. Or they may have sought to add to public understanding of the grounds of this grievance-to enlighten and inform, and not only turn up the volume of their complaint.

A first point—minor but worth considering-- is whether this agency needs another quirky procedural controversy. What does it mean for two Commissioners, one of whom is agency Chair, to dispense with their formal roles and petition as citizens, filing a petition on plain paper without their titles and just the Commission’s street address? Will they recuse themselves from voting on the petition as Commissioners? Will they testify before themselves?

One explanation provided to USA Today is that it will allow for a hearing at which the general public will be heard. But such a hearing has been held, and the Chair could have unilaterally arranged for another, as she did recently in convening a forum on the role of women in politics.

The answer to this may be no more than: it does not matter, because the Petition serves only to make a point. A sympathetic observer would call it a cri de coeur; one less sympathetic might see it as a PR maneuver. What might unite the two sides is merely their agreement, for entirely different reasons, that the Commission is not in good working order. The risk of the petition initiative is that rather than move the discussion to a better place (hard as that is), it sends a dreary message about the state of the agency.

A strength of any reform discussion is careful attention to the role of campaign finance in lobbying activity. Critics of standard reform proposals complain that “insiders” are attempting to regulate the political activity of “outsiders”, but this objection has less force when campaign finance restrictions fall more heavily on the insiders – – on legislators and the lobbyists who may build relationships with them by raising and giving campaign money.

So Senator Michael Bennet, supported by the reform community, has developed a bill entitled the Lobbying and Campaign Finance Reform Act of 2015, which pursues reform objectives from the "inside." It would expand the number of those who are required to register as lobbyists, and it would limit the influence they amass through the fundraising known as bundling. And the Members of Congress that they lobby could not solicit them for contributions when Congress is in legislative session. The focus here is on campaign finance as a lubricant of successful lobbying, and on any temptation in official circles to link the performance of the public’s business to campaign support.

The next question is-- how would this reform, if enacted, work, and how effective would it be in meeting the goals set for it?

Professor Bradley Smith has written an exceptionally succinct and well-argued case for super PACs.  This author of Unfree Speech: The Folly of Campaign Finance Reform does not neglect to cite “personal freedom” in defense of these organizations, but he challenges their critics on one other level: their effects on the electoral process.  He argues that super PAC spending improves turnout and competition, lessens the fundraising burden on candidates, and addresses other issues in the political system, such as the early primary states’ grip on the nominating process.   Whatever else one may think about all this money, he writes, we should see Super PACs as beneficial – – doing good things for the political process.

There are points of major interest in Smith’s presentation, which are found in both what he says and what he does not.

A dispute over whether the FEC is tilting its investigations against conservatives or Republicans is mostly a waste of energy.  Commissioner Goodman got this started at a Commission hearing and has been rebuked by Commissioner Ravel.  The Republicans profess to be outraged; the Democrats announce that this outrage has rendered them speechless.  Once again there is here, in the midst of this clamor, an important question-- the uses and misuses of the agency's enforcement process—that is being misdirected into another round of finger-pointing about bad faith and improper motive.

Public Citizen has concluded that the Federal Election Commission is failing.  Its shortcomings are "dramatic and uncharacteristic", because they range across the entire field of their responsibilities in conducting audits; enforcing the law through investigations, settlements and lawsuits; and issuing regulations and advisory opinions.  The Public Citizen analysis is statistical and focuses on vote deadlocks.   The FEC is indeed disagreeing a great deal—about that, there is no doubt.  But is the agency failing or is the old regulatory model collapsing under the pressure of changing law and political practice?

Public Citizen cannot answer this question because it is looking at agency performance in the aggregate.  It is unable, for example, to explain what might be happening in particular cases, or why deadlocks are occurring across various agency functions.  There are certainly instances where the vote for enforcement is as suspect as a vote against it.  The result is still deadlock but the reasons for it are not quite what Public Citizen implies.  Nonetheless, it being assumed that matters could not have gotten this bad without dereliction of duty somewhere, the FEC takes the blame.  It is expected to take up the big issues, such as those involving "coordination" or "dark money", which are precisely the issues over which disagreement is certain to arise.  And so around and around it goes.

One alternative available to the FEC in this period of uncertainty is to commit itself to less controversial but highly productive functions.  Bipartisan suggestions have been made, for example, that it could do better in discharging its disclosure function, and in reforming, as Congress has directed, the operation of its Administrative Fines program. There is value in starting with these basic responsibilities.  To the Commission’s credit, it has initiated a rulemaking to move in this direction.

And on this question of disclosure, there is much to be done, more than suspected by many who hold the view that, for all the discord and disappointment, campaign finance law administration has performed well on public reporting.  Now we have some fresh scholarship by Jennifer Heerwig and Katherine Shaw that subjects this assumption to careful, critical examination.  Jennifer A. Heerwig and Katherine Shaw, Through a Glass Darkly: The Rhetoric and Reality of Campaign Finance Disclosure, Geo. L. J. 1443 (2014).