In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

Assume general agreement that the Federal Election Commission is putting on a poor show nowadays.  The Commissioners are snarling at one another, tweeting out their grievances, withholding simple courtesies, and just snappish.

Now Brad Smith rightly counsels that we not overstate the significance of this.  It may go too far to say that the FEC is the most dysfunctional agency or, as one Commissioner has suggested, “worse than dysfunctional.”  We are seeing mainly a case of frayed nerves and personality conflicts among administrators who are under constant attack for being unable to agree on difficult issues.   The Supreme Court disagrees on those same issues, and the Justices can get testy, but they are saved from the charge of “dysfunction” because there are nine, not eight, Justices, and they can get to 5-4 and issue decisions.

But the open, increasingly personal squabbling, while uncomfortable to watch, is not all there is to the story.  It has led a form of “acting out” by Commissioners in the forms of procedural shenanigans, furtive and open uses of the press to score rhetorical points, and questionable characterizations of the issues before them (such as the absurd debate yesterday over whether some Commissioners were denying that others were people).  The personal and ideological conflicts have come to be expressed in administrative behaviors that some may find difficult to reconcile with a core understanding of the Commissioners’ official responsibilities.

George Will looks at Super PACs and sees the consequences of "reform": it's a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules.  The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place.  The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all.

An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate.  The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation.  Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating.  By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.

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.