Thoughts on the FEC and Its Troubles

It is impossible to believe that the arguments over FEC and its performance must remain at the present and very low level. Nothing constructive can come of this, a shouting match in which one side poses as the defender of constitutional values and the other holds aloft the banner of law enforcement. Observers tend to fall out along the same battle lines. Surely, arguments this simplistic must each be in part, and in serious measure, untrue. And even if there is any truth in the standard portrayals—if Democrats are too causal in the treatment of concerns with due process and limits on agency action and the Republicans take enforcement demands too lightly—each Commissioner must recognize that managing this conflict between enforcement objectives and constitutional limits is a large part of their responsibilities and they must keep trying to do so. Recognizing this, each would have to accept that to really try—to have this work—they need to guard against letting their guard down and permitting their jurisprudential or ideological preferences to pull them too far in any one direction.

(6/26/09) Read More

**Kennedy’s Problem in Caperton v. Massey and the Unfortunate Solution He Chose**

Not in all quarters, but in many, the Court’s decision in Caperton v. Massey has been well received. The facts of the case are arresting, the stuff of a Grisham novel, and added together, they make for a plausible plot about a ruthless, rich businessman spending heavily in a judicial election to buy a vote on a court. The Court, in an opinion written by Justice Kennedy, concludes that the case is “rare” and “exceptional," and that Due Process in these extraordinary circumstances compels recusal.

So much for the result, which many—especially those depressed by the spending trends in judicial elections—find elating. What of the opinion?

(6/12/09) Read More

What is New at the Federal Election Commission

The Republican Commissioners and the Meaning of the Deadlocks at the FEC

Robert F. Bauer

(An abbreviated version of this presentation was delivered at a BNA Conference panel on developments in campaign finance law)

The Federal Election Commission has lived with a mixed reputation since its first year—if one concedes that it is mixed. On both left and right, on the Hill and in the press, it has found few friends. Its destiny was not popularity: to have a fan base, it would have to regulate wisely, neither too much nor too little, and in doing so, it would have to succeed where, as many see it, both the Congress and the Supreme Court have failed.

It is an agency that is little understood, a misunderstanding in part the result of the small number of people who even try to understand it. This limited understanding is evident now as the FEC enters a new period of controversy. A deep division is apparent in the agency, separating three new Commissioners, appointed from the Republican ranks, from their colleagues. This division shows up in enforcement case "deadlocks"—3-3 votes, resulting in no decision being made—but also in stalemates that develop over audits and over regulations long in the works and pending, but not receiving, final approval. These divisions have raised the question of whether this conflict is exceptional, or just another example of an agency, foolishly structured for partisan deadlocks, that is ill-suited to the mission of campaign finance enforcement.

(5/18/09) Read More

Lobbying as Problem and as Profession

Keynote Address to
Inside Counsel’s Ninth Annual Conference

by Robert F. Bauer

May 5, 2009

I appreciate the opportunity to speak to you today about the changing conditions in which business interests conduct their government relations programs. The topic is, in a word, lobbying. Other labels have been invented, "government relations" among them—but also "legislative affairs", or "government affairs"—and yet it seems to come back, sooner rather than later, to lobbying, the universal and customary shorthand. So I’ll use that word without any intended pejorative association.

(5/5/09) Read More

Note to Readers, on a Change in the Plan

For five years now I have posted to this site, each week and most days, and I have enjoyed the opportunity that a blog affords to engage regularly with a committed and often lively audience for election law issues.

(4/21/09) Read More