Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.

The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”

As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.

Aside from the question of strategy, the Complaint itself  is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.

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.

The Louisiana Republican Party has enlisted Jim Bopp to mount a challenge to campaign finance restrictions on state political parties and so it is widely assumed that this is a Trojan Horse lawsuit with much wider significance for the survival of McCain-Feingold.  And of course if the three-judge court, then eventually the Supreme Court, decide the case a certain way, it could well help doom the 1970’s reforms--if not immediately, then eventually.  Rick Hasen, among others, has embraced the doomsday scenario, and the reform community has communicated to the three-judge court just this view of the stakes.

All of this may be true but this case and likely others to follow point to the costs of the bitter, stalemated discussion of campaign finance policy.  Louisiana and its lawyers have a reasonable case against the regulatory burdens on state parties: they stress that the dissatisfaction with aspects of these rules is bipartisan.  Thoughtful observers have concluded, as Brookings scholars recently did, that reforms are required.

But on this, as on other campaign finance issues, there is little likelihood of progress: no serious legislative engagement and, outside the Congress, a sharply divided political debate that mainly sorts out into hardline “reform” and “anti-reform” camps. The fight has largely moved to the courts, and from the reformers’ perspective, and with some uncertainty after Justice Scalia’s passing, this serves to put at risk the entire Buckley framework.  But if the outcome there is muddled or inconclusive, what will continue is the slow, steady rot of a regulatory regime characterized by ambiguity, complexity and evasion.  Neither of the alternatives is desirable.