The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.

Democrats and Republicans are disputing once again the agency’s record in dealing with contributions made to candidates through LLCs without disclosure of the original source.

The Republican Commissioners say that the law is unclear and, absent a clear purpose to evade reporting requirements, there is no justification for enforcement.  From the outside, Brad Smith agrees, and he questions why the Democrats won’t give up on enforcement actions on which there is no agreement and simply work on a rulemaking to establish clear, concrete rules.

Commissioners Weintraub and Ravel have replied with a Statement calling into question the Commissioners' good faith on the issue.  They were prepared, they note, to dispense with penalties in recent enforcement cases if the Republicans would join with them in a sensible and unequivocal statement of the law, and they don’t accept as sensible an intent or purpose-based test.

Taking the claims on each side at face value—crediting the Commissioners with meaning only what they say—one can ask: what is this argument about?  The very skilled Smith has shown that someone so inclined could defend the proposition that that there was really some doubt about the law and a donor might imagine that she could set up an LLC or use an existing one to make a contribution that would be reported only in its name and not in hers .  Elsewhere, here included, there has been doubt that there could be any doubt. Lawyers disagree.

But among the Commissioners the legal disagreements are at bottom the product of fundamental divisions over how this law--this kind of law--should be enforced. The Republicans believe, as they long have, that campaign finance laws enacted within constitutional limits should be limited in ambition and very clear.  The one goal is related to the other.  The narrower in scope, the less ambiguity in the law.  Behind this is the fear that laws of this nature are dangerous in potential effect on speech and association.  The extent of the danger varies with the extent of the ambition and of the ambiguity.  This puts the Republicans on guard, to the point of either paralysis or obstruction, depending on the point of view.

FEC Commissioner Weintraub believes that she has hit upon a regulatory maneuver to stop publicly traded corporations from making independent expenditures, or unlimited contributions to independent expenditure committees.  At a time when newspaper editorialists carry on with attacks on the Commission as “worse than useless,” the Commissioner seems determined to prod the FEC to face the major “money in politics” issues of the day.

This is her theory: foreign nationals cannot make contributions or independent expenditures, which means that the FEC could establish that no corporation with foreign nationals as shareholders could engage in this political spending.  The rule would not bring about this result outright: it would require a corporation to "certify" that it was not making contributions or independent expenditures with these funds.  As a practical matter, corporations with foreign national shareholders could not risk making the certification and would forgo this political spending.  The Commissioner plans to direct lawyers to produce proposals that she and her colleagues can consider in a future rulemaking.

This is an interesting proposal, but it is generally appreciated that a Commission unable to agree on matters of lesser moment will not find a majority in favor of this one.  But even beyond that, the proposal is vulnerable to questions about its viability as a regulatory measure.

A Brookings Institution study of state parties, authored by Ray La Raja and Jonathan Rauch, is the latest of the sober commentaries on contemporary campaign finance.  La Raja and Rauch conclude that state parties have lost significant ground to outside groups and are impeded in large part by federal regulation, mostly by McCain-Feingold, in performing critical functions. They would like to see for these state parties increased or eliminated contribution limits, deregulation to enhance their ability to coordinate with candidates and to conduct ticket-wide activities, and perhaps even public financing measures in the form of tax deductible contributions.  The strengthening of state parties, they are convinced, can promote more moderate politics; it can offset to some extent the polarizing forces unleashed by “outside groups.”

It is a thoughtful report and a contribution to the growing consensus that campaign finance laws today are unworkable and in desperate need of reform.  The question is: are state parties, for the reasons given, an appropriately special focus of reform.

As the authors note, there are other reasons for the struggles of state parties and the rise of the outside groups.  Laws and rules may add to the problem but are not its exclusive cause. Much of what La Raja and Rauch say about state parties would apply to the parties as a whole, at the national as well as the state and local level, and there are other actors within the regulated system also clamoring with justification for relief from outdated, burdensome, and pointless regulatory limits.

The case for singling out the state parties rests on La Raja and Rauch’s belief that these organizations are “important nodes of the political equivalent of civil society,” capable of creating “social capital by building connections, trust, and cooperation across diverse individuals and groups.”

This is a strong claim.

The Federal Election Commission’s job is hard, harder than many will admit, but the agency somehow manages to make it even harder. So now, five years after the fact, the FEC has decided not to investigate a donor's alleged use of an LLC to mask a $1 million contribution to a Super PAC.  The word of the non-decision got out before any member of the FEC could explain it or any of the case materials were released.

So naturally the agency looks somewhat silly.  Some might and do ask: how could it be that the alleged establishment of an LLC to mask the true source of a large contribution isn't even subject to an investigation?  And why would it take almost five years for that inconclusive result to be reached?  Maybe the case files once released, along with the explanations of the different Commissioners, will provide some answer to those questions.

The case did take an unusual turn in 2011 when the individual donor came forward, claimed that a lawyer had advised him that he could do this, and asked that the Super PAC amend its reports to disclose him as the true donor.  In other words: on the date that the complaint was filed and before the FEC began its review, the harm of the particular case was being redressed.  And presumably complicating matters was the donor’s contention that he acted on legal advice.