Public Citizen has concluded that the Federal Election Commission is failing.  Its shortcomings are "dramatic and uncharacteristic", because they range across the entire field of their responsibilities in conducting audits; enforcing the law through investigations, settlements and lawsuits; and issuing regulations and advisory opinions.  The Public Citizen analysis is statistical and focuses on vote deadlocks.   The FEC is indeed disagreeing a great deal—about that, there is no doubt.  But is the agency failing or is the old regulatory model collapsing under the pressure of changing law and political practice?

Public Citizen cannot answer this question because it is looking at agency performance in the aggregate.  It is unable, for example, to explain what might be happening in particular cases, or why deadlocks are occurring across various agency functions.  There are certainly instances where the vote for enforcement is as suspect as a vote against it.  The result is still deadlock but the reasons for it are not quite what Public Citizen implies.  Nonetheless, it being assumed that matters could not have gotten this bad without dereliction of duty somewhere, the FEC takes the blame.  It is expected to take up the big issues, such as those involving "coordination" or "dark money", which are precisely the issues over which disagreement is certain to arise.  And so around and around it goes.

One alternative available to the FEC in this period of uncertainty is to commit itself to less controversial but highly productive functions.  Bipartisan suggestions have been made, for example, that it could do better in discharging its disclosure function, and in reforming, as Congress has directed, the operation of its Administrative Fines program. There is value in starting with these basic responsibilities.  To the Commission’s credit, it has initiated a rulemaking to move in this direction.

And on this question of disclosure, there is much to be done, more than suspected by many who hold the view that, for all the discord and disappointment, campaign finance law administration has performed well on public reporting.  Now we have some fresh scholarship by Jennifer Heerwig and Katherine Shaw that subjects this assumption to careful, critical examination.  Jennifer A. Heerwig and Katherine Shaw, Through a Glass Darkly: The Rhetoric and Reality of Campaign Finance Disclosure, Geo. L. J. 1443 (2014).

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.

In the course of a week's discussion of the state of the campaign finance law, various descriptions and explanations have been offered.   FEC "paralysis" has led the list, with the level of fines given as evidence, and it has also been suggested that the tenure of former Commissioner McGahn has to be taken in account.

The Meaning of “Paralysis”

National Public Radio devoted an hour of The Diane Rehm Show to a discussion of the state of campaign finance, the question before its invited panel being: what to make of the “paralysis” at the FEC?   Senior election law expert Jan Baran was on one side of the argument; FEC Chair Ann Ravel, Campaign Legal Center President Trevor Potter and New York Times Reporter Eric Lichtblau were on the other.   It was an illuminating exchange—in its way. For if the issue, as the show title affirmed, was administrative “paralysis,” then the answer should be more administrative resolve to do what the law clearly bids the Commissioners to do. The discussion suggested that this view was too simple, but that because it is a simple view, it will have staying power in the coverage of money in this election cycle.

Organized into basic questions and answers, the conversation ran along the following lines:

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.

Long in the field of campaign finance, well versed in its triumphs and tribulations, Larry Noble of the Campaign Legal Center objects strongly to the suggestions for disclosure reform I co-authored with Professor Samuel Issacharoff.  It’s all a magic trick, he argues, that accomplishes the reverse of its stated intention: it moves contributions into the dark, raises the risk corruption and disregards the lessons of Watergate.  The public is not “gullible”: it won’t buy it.

It is difficult not to imagine that Mr. Noble is engaged in theater of his own, something like the aerial feat performed yesterday by the mailman in a gyrocopter who touched down on the Capitol grounds with a similarly passionate appeal for campaign finance reform.  This gentleman, undoubtedly sincere but less clearly prudent,  entitled his project “Kitty Hawk”, after the Wright Brothers’ fabled flight in North Carolina in 1903.  Larry, if he were maneuvering a craft, might have  named it “Watergate," and he would have refreshed the message by 70 years, with only another four decades to go to cross over into the current century and to the present time.