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.

A wing of the progressive reform movement, frustrated with other strategies, is turning to the carrot and the stick.  It program is to use rewards or punishments to exact pledges or other commitments from candidates and officeholders.  It will dangle the prospect of financial support, wield the threat of denied campaign funding, and maybe mete out punishment for resistance by giving money to the opposition.  All of this is described by Derek Willis in a recent New York Times Upshot piece that notes what is long been known – – that voters do not rank campaign finance regulation high among their priorities.  Unable to rely on public opinion or pressure, these reform advocates look to cut a deal with current or prospective legislators, to make them an offer they cannot refuse.

The FEC last week approved a Proposed Petition for Rulemaking that seeks agency action in various ways to clarify and strengthen public disclosure requirements and expand, as authorized by Congress, the Administrative Fines Program.

The attorneys filing the Petition represent varied and bi-partisan professional backgrounds and experiences. Their point overall is that, while there are obviously major differences separating the Commissioners on a number of issues, the FEC can take effective action on administrative matters of importance over which there should be little disagreement. One point of departure is bringing order, clarity and consistency to its reporting form and guidance. This is a disclosure program around which the entire “regulated community” can rally, with clear benefits to the public.

Larry Lessig and Brad Smith remain at odds over the complaint Professor Smith’s organization, the Center for Competitive Politics, filed against Mayday PAC for violating the disclaimer rules. While not using precisely this word, Lessig believes that the CCP action was petty.  The problem, he says, was a breakdown in approval procedures and vendor performance, and no one was harmed.  Smith has no use for the excuse and he says that an organization dedicated to regulating political activity ought to be held to account for violating the regulations it is dedicated to promoting.