The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation.  The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv.  Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting.  The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.

But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?

A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it?   But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form.  Potential recusal is part, not all, of the problematic course that this initiative could take.

The Commissioners wish to have the Commission "clarify" two issues they claim to have been thrown into some doubt by Citizens United.  They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures.  A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.

If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.

By petitioning their own agency for a rulemaking, Commissioners Weintraub and Ravel have found a novel way to charge their colleagues with fecklessness. Call it a populist gesture: they are stepping out of their roles as administrators and issuing their appeal from the outside, as members of the general public. They may have done all they could or intended to do with this Petition, which was to publicize their grievances. Or they may have sought to add to public understanding of the grounds of this grievance-to enlighten and inform, and not only turn up the volume of their complaint.

A first point—minor but worth considering-- is whether this agency needs another quirky procedural controversy. What does it mean for two Commissioners, one of whom is agency Chair, to dispense with their formal roles and petition as citizens, filing a petition on plain paper without their titles and just the Commission’s street address? Will they recuse themselves from voting on the petition as Commissioners? Will they testify before themselves?

One explanation provided to USA Today is that it will allow for a hearing at which the general public will be heard. But such a hearing has been held, and the Chair could have unilaterally arranged for another, as she did recently in convening a forum on the role of women in politics.

The answer to this may be no more than: it does not matter, because the Petition serves only to make a point. A sympathetic observer would call it a cri de coeur; one less sympathetic might see it as a PR maneuver. What might unite the two sides is merely their agreement, for entirely different reasons, that the Commission is not in good working order. The risk of the petition initiative is that rather than move the discussion to a better place (hard as that is), it sends a dreary message about the state of the agency.

A strength of any reform discussion is careful attention to the role of campaign finance in lobbying activity. Critics of standard reform proposals complain that “insiders” are attempting to regulate the political activity of “outsiders”, but this objection has less force when campaign finance restrictions fall more heavily on the insiders – – on legislators and the lobbyists who may build relationships with them by raising and giving campaign money.

So Senator Michael Bennet, supported by the reform community, has developed a bill entitled the Lobbying and Campaign Finance Reform Act of 2015, which pursues reform objectives from the "inside." It would expand the number of those who are required to register as lobbyists, and it would limit the influence they amass through the fundraising known as bundling. And the Members of Congress that they lobby could not solicit them for contributions when Congress is in legislative session. The focus here is on campaign finance as a lubricant of successful lobbying, and on any temptation in official circles to link the performance of the public’s business to campaign support.

The next question is-- how would this reform, if enacted, work, and how effective would it be in meeting the goals set for it?

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.