In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby.  It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better.  The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.

Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs.  Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control.  If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?

A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it?   But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form.  Potential recusal is part, not all, of the problematic course that this initiative could take.

The Commissioners wish to have the Commission "clarify" two issues they claim to have been thrown into some doubt by Citizens United.  They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures.  A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.

If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.

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.

In the War of FEC Commissioners, a Republican, Lee Goodman, has returned the fire of his colleague Ann Ravel and given his account of whether the agency has failed to enforce the law.  He says it's not so. Much of the time, he writes, they agree, and where they don't, the points of disagreement are focused on large issues like the definition of what constitutes a “political committee.” But he says more, giving examples of what he means, and the additional argumentation is illuminating.

Commissioner Goodman claims that in explaining deadlock, the Democratic side won’t credit their Republican colleagues with principled stands.  He cites Chair Ravel’s vote against continued enforcement of a rule governing paid Internet advertising. It is not up to a Commissioner, Goodman suggests, to use the enforcement process to score a point against a valid regulation or to pursue a respondent who has complied with it.

But he also notes another case of deadlock, which involved the enforcement of the Commission’s "candidate debate" regulations. And this example shows, and to some degree why, the Commissioners tend to fall out when it seems that unity would be within their grasp.