It seem unfair that just holding a hearing subjects the FEC to criticism and ridicule. The agency was acted entirely reasonably in inviting views on what it might do, if anything, in response to the McCutcheon case.  So what followed was predictable: the usual strong divisions were expressed and anyone hoping for a clear picture of the problems of campaign finance and how to address them was bound to be disappointed.  The FEC is not the culprit here: it only hosted the discussion and is not responsible for its content. It was a hearing.

The Federal Election Commission is about to hear from a varied community of observers and participants who have views of what it should do—or not—after McCutcheon.   All the witnesses are aware that there are major, lines-drawn-in-the-sand disagreements within the agency over policy and authority. They know, from the start, that proposals to toughen rules on, say, earmarking, have a slim chance of success. But still the ones who favor new, more muscular regulation make their case. But they don’t make it in all the same ways, and in the differences lies the chance to make the best use of the advocacy they know will only get them so far. 

When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.

The Commission seems to be back at it again: quarreling publicly over disclosure rules and policy applied to the Internet advertising. The Republican Commissioners are calling for a public uprising of sorts against Commissioner Ravel’s call for reconsidering those rules and policy as part of an Advanced Notice of Proposed Rulemaking. They are urging public comments—they have in mind protests—attacking tighter reporting requirements. The Internet has been provided with lenient regulatory treatment, a choice for which the Commission has been generally applauded, and the Republican Commissioners want to keep things that way. Commissioner Ravel has both moved to reopen the question and indicated her view that more regulation may be in order—that significant sums spent for political advertising on the Internet should be viewed, for disclosure purposes, as no different than broadcast, cable or satellite communications.

Those who are rooting for a Commission that works better and more collaboratively across the partisan divide have reason for concern. Only a few weeks ago, the Commissioner managed to approve rulemakings to take account of recent Supreme Court decisions. The vote was not unanimous, but a 4-2 decision was progress, and at the Commission table, there was hope expressed that the agreement reached that day marked a fresh commitment among Commissioners to explore additional areas for agreement. It would be a shame if now, in the flap over Internet regulation, the Commission quickly regressed to caustic exchange and administrative stalemate.

A recent posting here reviewed possible paths for campaign finance regulation: a determined attack on loopholes, a biding for time until scandal possibly arrives and allows for legislative reform and expanded opportunity for regulation, or an openness to rethinking the issue?

Which of these is chosen will be influenced by which aspect of campaign finance is thought to be really pressing: how much money is spent (volume); how it is spent (influence), and how much is publicly known about it (transparency). Of course, in any critique of campaign finance, from the left or right, there is a little bit of everything thrown in, but one of these three considerations is usually emphasized over the others.