The FEC cannot apparently do enough to make its critics look good. The problem is not, of course, that the FEC as a whole, as a unified body, is taking action that invites complaint. It is the absence of constructive cooperation among the Commissioners when it seems that it should be possible. No one comes off well. And it all turns out worse than necessary. The Fox News Debate case is the most recent example.

It starts with the ostensible news, apparently actively promoted by one of the Commissioners, that the FEC had voted secretly to “punish” Fox News for expanding one of its sponsored Presidential debates to include more rather than fewer candidates. In fact, the FEC had to consider a formal complaint brought by an excluded candidate who was perhaps understandably miffed that he seemed to be the only Republican not permitted to take the stage in an August, 2015 debate, which involved a main event and an “undercard,” featuring seventeen candidates. The FEC did not go chasing after Fox: it was stuck with the task of resolving the complaint. And it always votes “in secret,” under statutory procedures, with the results publicly released later.

To address the complaint, the FEC had to apply the rule governing a media organization’s “staging” of candidate debates. These rules have been around for a long time—too long perhaps, and a reconsideration and revision may be long overdue. But the rule is the rule, and the General Counsel prepared a memo for the agency that found that it had not been followed. Rather than apply “pre-established objective criteria,” to the determination of which candidates would be invited, Fox improvised. It twice adjusted those criteria to maximize the candidates who would be included. And it freely admitted that it had done this “to include and accommodate” the large field.

Of course, the conclusion that this amounts to a violation of law seems more than a little peculiar. Fox was not engaged in the conduct the rule was concerned with: rigging the rules to favor particular candidates over another, which would be a form of prohibited corporate contribution to the golden circle of the included. For all practical purposes, Fox was dispensing altogether with any criteria for selection. As it happened, it still managed to leave out the complainant. After all, any criteria at all, even ones barely worth the name, will leave someone out.

The Republican Commissioners have now explained why they would not agree to investigate claims that a company pressured employees to make political contributions. Their joint Statement is a skillful piece of work and, on certain of the specific evidentiary issues in this case, it scores a point or two.

But:

These Commissioners understand that they are both disposing of the particular case and making a broader statement about the law, and what comes across in their analysis is the narrowest of readings of the protections against coercion. To them, this is a First Amendment issue—the right of a company to promote employee giving, so long as a) it faithfully includes anti-coercion language as required by law in all written solicitations, and b) applies heavy pressure without explicit threats. The Republican Commissioners have mapped out a path for employers to badger those who work for them into making contributions. Nowhere in their analysis do they display much interest in the First Amendment interests on the other side of this relationship, among the employees-- except for this sentence, which makes a lonely appearance at the beginning and appears to have little effect on the balance of the analysis: “The coercion of a person’s political contributions to a [PAC]…is a grave interference of a person’s core constitutional rights.”

The FEC has once again deadlocked on an enforcement case and left an important question dangerously open.  Months ago, the FEC could do nothing useful with a case about the use of LLCs to make contributions.  Now it is inviting trouble, and not for the first time, with a case about how hard a corporation may press its employees to support the employer’s political program.

In the recent case, the FEC was forced by the usual 3-3 division to dismiss a complaint that a company pressured employees to make political contributions to its PAC and favored candidates.  The question before the agency was whether to investigate. There were reasons, including internal company documents.  In one of them, the company advised managers that “we have been insulted by every salaried employee who does not support our efforts.”  There was a press report recounting the experience of unnamed employees with coercive practices, and one employee put her complaint on the public record as part of a wrongful termination action.

It cannot be known if, on investigation, the FEC would have found enough to support a conclusive finding of violation.  The dissenting Commissioners who declined to support further inquiry may have had their so far unexplained reasons.  But with the dismissal of the Complaint and nothing more heard from the agency, the regulated community has a fresh signal of either Commission paralysis on an issue of central importance, or of ominous possibilities now available to employers in soliciting political contributions from their eligible managerial ranks.

Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors.  The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment.  The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.

There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.

David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.