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.

As the Supreme Court prepares to hear argument on the challenged ban on personal fundraising by judicial candidates, writers arguing for the preservation of this prohibition continue to make their case. Kate Berry of the Brennan Center replies to a posting here and disagrees with the proposition that it is hard to see a major benefit from a restriction on speech described as “modest.” Garrett Epps shares her position that the prohibition should be upheld. In each case, the writers maintain that if we have to have judicial elections, they should be subject to special rules to safeguard public confidence in an independent judiciary and that this is one such rule.

What is offered in support of this position?