In a letter sent to the Federal Election Commission yesterday, individuals who have experience with the FEC applauded the move toward a rulemaking to conform the rules to recent Supreme Court decisions, and urged more of the same, in a similar spirit of putting the regulatory house in order. (I am one of the signatories).

The FEC is followed closely only when it is contending with the most difficult, most divisive issues.  It is blamed for much of what makes critics unhappy with the law when there are major contributing factors—like changes in constitutional jurisprudence—that the agency can do little about. But in the meantime, the agency is charged with implementing the core requirements—limits, prohibitions and disclosure requirements—which courts have upheld.  How it does this job matters, and it should matter to both proponents and opponents of more extensive regulation.

Troubled as always that the government might be dabbling in politics, George Will wrote this last week about the Patent Office cancellation of the “Redskins” trademark registration. His larger point is that once the government has the discretion to jump into political debates, it may choose those occasions that suit its political or ideological preferences. Citing Jonathan Turley,  he gives an example from campaign finance: the FEC’s exercise of discretion in approving the financing of Michael Moore's documentary about George W. Bush, Fahrenheit 911, while disapproving Citizen United’s now-famous documentary about Hillary Clinton.

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.

Dear Commissioners:

The Perkins Coie Political Law Group ("PLG") is pleased to submit these comments in connection with the Forum that the Commission has convened to "evaluate and improve our administration of the law with respect to political parties."

For many years, the PLG's practice has included national, state, and local party committees, and the group has represented these clients before the Commission on a wide range of party issues in the rule-making, advisory opinion and enforcement processes. While a representative of the PLG was unable to be present at the Forum, we have observations to offer from this practice's experience that may be useful to the Commission. The views expressed here are the PLG's alone and not those of any client of the firm.

The decision in  McCutcheon  has not been the only source of lively rhetoric in the world of campaign finance. The FEC's commissioners took to very open squabbling, putting their cases in Statements of Reason and elaborating on them in op-eds and letters placed with the New York Times. The conflict in this instance involved Commissioner Ravel on one side and all of the Republican commissioners on the other, and they swiped at each other in strong terms over the properly defined responsibility of FEC Commissioners and the role of courts.