A dispute over whether the FEC is tilting its investigations against conservatives or Republicans is mostly a waste of energy.  Commissioner Goodman got this started at a Commission hearing and has been rebuked by Commissioner Ravel.  The Republicans profess to be outraged; the Democrats announce that this outrage has rendered them speechless.  Once again there is here, in the midst of this clamor, an important question-- the uses and misuses of the agency's enforcement process—that is being misdirected into another round of finger-pointing about bad faith and improper motive.

The Supreme Court has been asked to consider whether the Attorney General of California may require tax-exempt organizations to produce donor information normally provided only to the Internal Revenue Service. The petitioner, the Center for Competitive Politics, argues that the Ninth Circuit has improperly upheld this requirement by giving the State ready access to this information on a slim-to-none showing of need.  The Attorney General has asserted that the information will be useful to the State's attempts to enforce the law, such as the protections against self-dealing or improper loans.  Others apparently suspect that there is more going on, namely, a move to discourage the sort of politically shaped tax-exempt activities associated with the Koch brothers.

This is an important case, now before Justice Kennedy.  It is the latest turn in a troubled reform debate.   First there is the fight over disclosure, which is relatively new. For years this was supposed to be the common ground that camps badly divided over other forms of regulation could occupy: but no more.  And just as reform communities have suspected political actors of cheating on the law, engaging in "circumvention,” now skeptics of regulation fear that, in the absence of consensus on legislative reform, state actors are resorting to extralegal administrative remedies.

Over the weekend, on the election law listserv, a snippy exchange quickly developed about the California case and what it represented.  In some part, the views fired back and forth reflected the widespread assumption that positions on reform can be explained primarily by reference to their proponents’ political objectives.  It is believed that reformers want regulation to advance progressive policies, or that their antagonists oppose regulation because they wish to surrender political power to the marketplace.

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.

The press about super PACs is heating up: there are articles popping up all over the place—here, there, everywhere.  There is at once a general sense that major change is overtaking the campaign finance system, and no agreement about what it means or what, if anything, should be done about it.  So the old arguments continue.  Often they make no difference.  Sometimes they make matters worse.

Consider the recent decision issued by the United States District Court in Holmes v. Federal Election Commission, No. 14-1243(RMC), 2015 (WL 17788778 (D.D.C. April 20, 2015).  Holmes brought a complaint against the contribution limits in one particular and, some would argue, peculiar application.  Congress structured the limits on a "per election" basis:  indexed for inflation, the individual per election limit is now $2700, $2600 in the last cycle.  But this limit works differently for different classes of candidates.  A candidate actually or effectively unopposed in the primary can collect a full contribution for that non-event, then immediately collect the same amount from the same contributor for the general and spend all of it in the later election---a sensible move, because she has no other election in which to spend it.  The opposing candidate who must struggle through the primary will use up the limit for that election and have only $2700 left for the general.

Holmes believes that this is wrong, and a constitutional wrong at that: that it denies her the right to commit the full lawful amount to the candidate she supports in the general election, and that it advantages incumbents who are most likely to avoid primary competition.  The Court disagreed, characterizing her challenge as a "veiled" attack on the contribution limits overall.

A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters.  It was objected that the agency was ignoring Congressional intent and gutting the law.  One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act.   At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.

But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action.  The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list.  Any upward movement is taken to be, maybe, a sign of more popular passion to come.  This is always the wish.  In the annals of modern campaign finance, it is never a wish come true.

But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians.  And this could make a difference.  Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”-- who can shape the course of a campaign with their money.  The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”