The FEC and the Fox News Debate
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.
A theme appearing in a number of post-McDonnell commentaries and editorials is that the Court has made more difficult the prosecution of bribery-based public corruption. It is certainly true that the Court has pared down the reading that could be given to bribery, and especially of the pay to play sort: paying for access alone, in the “typical form, such as arranging a meeting or phone call for someone to make a case for government action. As a practical matter, however, there remains considerable peril in access-buying. How much of a problem prosecutors will now face in bringing these cases is an open question.
In many corruption cases, some person’s (P’s) wish to have official A contact official B, to open up the channels of communication and advocacy, does not arise because B is somehow unavailable. B is or has been available, just not on the terms that the private party finds advantageous. B might rarely takes private meetings, requiring more formal submissions, or delegates much of the responsibility for face-to face encounters to staff. Or B has had the meeting with others present, and P would like a more private discussion. Or B has had the meeting, and P wants another, not confident that the first did the trick.
So P is looking for something he could not otherwise get, or so he believes, by having A ask B to provide the opportunity. Because B might not otherwise grant the audience, B is getting a message from A in many such cases—that A has a special interest in P, if not in P’s cause.
Depending on the facts, these circumstances, usually together with other facts, can constitute a trial question of exerted “pressure” from A on B, which the Court in McDonnell retained within its narrowed definition of “official act.” Neither P nor A are in the clear if P provided benefits to A in return for help with B.
The Supreme Court and “Access-Buying” in McDonnell
A unanimous Supreme Court held Monday that it is not - certainly not under any and all circumstances - a crime for someone to pay for "access" to government decision-makers. Careful not to say so too explicitly, the court is signaling that political favor-seeking fueled by cash and gifts may well be repellent, but there is only so much the legal system can - or should - do about it.
Amid all the election-year talk about a "rigged" political system, the room left by this opinion for pay-to-play politics strikes a somewhat discordant note. Two years ago, in a case involving overall contribution limits, Chief Justice John G. Roberts Jr. wrote that contributors can reasonably expect some measure of "ingratiation and access." Now, Roberts has taken another, aggressive step in that same direction, this time involving personal gifts rather than political contributions. He has brought the court along with the view that the bribery laws don't necessarily reach purely personal benefits provided to a government official in return for help arranging meetings or scheduling calls.
Reform and the “Chaos Syndrome,” Part II
Jonathan Chait disagrees with the Jonathan Rauch’s point about the bite-back effects of modern reform as one explanation for political dysfunction. The problem Chait sees is that the GOP has gone mad and that a reversal of course on reform—e.g. opening up more resources for the parties—won’t make any significant difference.
Rauch does not dispute that there is a limit to what can be expected of his reform-the-reforms program. He also looks for the source of the problem in wider causes, though his emphasis is not on the qualitative difference between the major parties’ styles, tone and tactics. He does suggest that the 1970’s reforms, including but not limited to the passion for full transparency, can make it harder to achieve constructive discussion and compromise even when this healthier politics might otherwise be possible.
Chait cites studies validating his case that the resistance to compromise with a reviled opposition has advanced to a destructive degree within the GOP. But there is evidence to suggest that this hyper-partisanship may be spreading and there may be less to distinguish partisans on this score over time if the current trend holds. Pew has just published a study concluding that “partisans’ views of the opposing party are now more negative than at any point in nearly a quarter of a century.” Among its findings: “Exactly half of Republicans and 46 percent of Democrats said they find talking politics with a member of the opposing party to be ‘stressful and frustrating.’”
Reform and the “Chaos Syndrome”
In an article just published in Atlantic, Jonathan Rauch argues that modern political reform has contributed to a disastrously weakened capacity for responsible, functional self-governance.The damage has been done to critically needed intermediary institutions, such as parties, whose effectiveness depend on allowances and practices now associated with old-style politics: less transparency in the conduct of government business, more resources for parties and their leadership, more of a role for party leaders and elites in screening candidates, and more flexibility for congressional leaders to utilize tools like "pork" to induce cohesion in the legislative ranks. The result of the change has been what he calls “chaos syndrome.”
Rauch does not claim that the reforms all without merit, or that we can or should leapfrog back to the end of the 19th or early 20th century. But, he says, by scaling back or adjusting certain of these reforms, something can be done to restore functionality to our politics—to contain the “chaos.”
Writing perceptively about this problem of reform’s “unintended consequences, ” Rauch recognizes that there are “other, larger trends” in the political culture responsible for this syndrome. For example, he cites the “politphobes” among voters who are convinced that there are clear remedies, beyond reasonable disagreement, to the nation’s ills, and that only the politicians and their political shenanigans and dark conspiracies have gotten in the way. He faults the reforms, for exacerbating this and other problems, just as he appreciates that revisions in the 1970’s reform model won’t somehow alone bring order out of the chaos.
It would be mistake, and maybe a trap, if Rauch’s analysis were taken to call only for re-evaluation of reforms already enacted. The argument taken primarily in that direction is sure to activate the same tired debates, feeding into the standard fear that politicians, "rolling back" reforms, are taking care of themselves at everyone else’s expense. No less important is bringing Rauch’s analysis into a discussion of the proposal of new reforms.
Also
- Russian Intrusion and Partisan Pressures: Aspects of Election Administration Reform After 2016
- Catastrophic Attack and Political Reform
- More on When Collusion with a Foreign Government Becomes a Crime
- “When Collusion with a Foreign Government Becomes a Crime”
- The Supreme Court and the Political Parties
- Brian Svoboda on the Ends of Congressional Ethics Enforcement
- The Political Parties and Their Problems
- The Pence Commission: Of “Public Confidence” and Trojan Horses
- Legal Process and the Comey Firing
- The Trump Executive Order and IRS Politics