[EL] FEC deadlocks
Smith, Brad
BSmith at law.capital.edu
Thu Jun 30 19:01:38 PDT 2011
That, too, has for years been the fall-back theory - well, they deadlock on important things. To some extent, of course, deadlocks are more likely on controversial or important things - it would be odd to think otherwise. Of course, if you define important as anything on which there is a "deadlock," you'll get a very high percentage of "deadlocks" on important votes. Reformers have sometimes done this - one Democracy 21 bit on this meme listed a 3-3 vote by the Commission not to file an amicus brief in a state law case as "important." Well.
By any reasonable measure the FEC deadlocks rarely, not frequently, and it decides most issues that come before it (indeed, 3-3 votes decide most issues, at least on the enforcement docket). It may well be that there are more 3-3 votes than in the recent past, as back when the reformers when only convinced that I was the anti-christ and claimed that the FEC was hopelessly deadlocked and wouldn't enforce the law and blah blah blah. In fact, the evidence shows that, so let's just say it is true that there are more 3-3 votes than at many times in the past. That is a far cry from the regular suggestions that the FEC is all "deadlock" and "as good as dead."
I could do a search of Jerry Spring transcripts for "transvestite," list the results, and come to the conclusion that 35% of Americans are cross-dressers. Some people are, indeed, fascinated by transvestites, so I guess it makes for good TV, but the fact that Jerry brings it up a lot doesn't make it reflective of reality - even if it is called "reality" TV.
Oh, and the Republican commissioners vote on disclosure preserved the law, it didn't change it. The Democrats wanted to change it.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of Rick Hasen
Sent: Thu 6/30/2011 9:46 PM
To: law-election at uci.edu
Subject: Re: [EL] FEC deadlocks
I pointed to Michael Franz's post in particular, because he has done empirical studies of deadlocks at the FEC and his impression that things have changed in the McGahn era. The analysis needs to be not only quantitative, but qualitative. The party line votes on disclosure, enforcement, coordination and the Citizens United rulemaking will turn out to be quite important as the 2012 election season gets into full swing. Indeed, the Republican Commissioners' vote on disclosure of which contributions must be disclosed to fund electioneering communications may be the single biggest change to campaign finance law this election season aside from Citizens United itself.
On 6/30/2011 6:01 PM, Smith, Brad wrote:
Over the last two years the FEC has unanimously decided 30 of 42 advisory opinion requests, and "deadlocked" on 4, or less than 10% for the mathmatically challenged. This is actually a historically high rate of deadlocks, but still far less than the impression one would get from listening to the reform community. If history is any guide, the percentage of "deadlocked" votes on substantive enforcement matters is even lower.
Reformers have tossed this chestnut around for 20 plus years, attempting to fob off the failure of regulation in this area on lack of effective enforcement rather than a complex law, muddled objectives, legal setbacks in court, and a law and theories that simply do not work.
As they like to say, anecdotes do not constitute data.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of Rick Hasen
Sent: Thu 6/30/2011 7:01 PM
To: law-election at UCI.EDU
Subject: [EL] FEC deadlocks
There's been a suggestion that the number of FEC deadlocks has been exaggerated. Below is a post from Michael Franz on the question, included among all the posts on my blog in the last couple of years in which the word "deadlock" appears (I've removed from this list those posts which don't involve the FEC):
Search Results for: deadlock
The Bigger Story at Today's FEC: No New Soft Money Loophole; Jim Bopp, Like Stephen Colbert, Brings Some Unanimity to the FEC <http://electionlawblog.org/?p=19997>
Posted on June 30, 2011 <http://electionlawblog.org/?p=19997> by Rick Hasen <http://electionlawblog.org/?author=3>
While Stephen Colbert got all the attention <http://www.washingtonpost.com/politics/fec-allows-colbert-to-form-super-pac-for-2012-elections/2011/06/30/AGxVGBsH_story.html> at the FEC today (link to commission audio <http://fec.gov/audio/2011/2011063001.mp3> ), the more important substantive decision was the unanimous vote of the FEC to prevent the reopening of a soft money loophole <http://electionlawblog.org/?p=19632> in campaign finance law. It's not every day (in fact, it's usually not any day) that the FEC's actions get praise <http://bit.ly/lm9Xwc> from Fred Wertheimer.
What happened and why?
Here's the back story: Jim Bopp announced the formation of a Republican "super PAC"-a political committee which does not make any contributions directly to federal candidates, and which, thanks to recent court and FEC rulings may take unlimited contributions (from individuals, corporations, and labor unions) to be spent on independent ads supporting or opposing federal candidates. What made Bopp's proposal unique is that he would use Republican officeholders to raise unlimited sums for the Super PAC. It would not only create a "shadow" Republican party-it would get elected officials back in the business of raising unlimited sums from corporate, union, and wealthy contributors, effectively reversing the "soft money ban" put in place by McCain-Feingold. Not only did the Supreme Court uphold that ban in McConnell v. FEC <http://www.law.cornell.edu/supct/html/02-1674.ZS.html> (in a portion of the opinion not touched by Citizens United), even Justice Kennedy <http://www.law.cornell.edu/supct/html/02-1674.ZX2.html> voted to uphold key parts of the ban on elected officials soliciting unlimited funds to benefit their political parties.
Democratic lawyers, including Marc Elias, in a savvy move, then filed an Advisory Opinion request, asking the FEC to rule on whether such unlimited fundraising is legal, or whether such solicitations need to be within the $5,000 limit for PACs which are not "super-PACs." So Elias got the FEC to rule on whether Bopp's plan is legal.
Today the FEC voted on that advisory opinion request, saying that elected officials may not raise unlimited funds for super-PACs. I have not seen any news reports yet, but Sean Parnell tweets <https://twitter.com/#%21/seanparnellCCP/status/86454867312381952> that the Commission, on a 6-0 vote, approved a revised version <http://fec.gov/agenda/2011/mtgdoc_1137b.pdf> of Draft A to AO request 2011-12. It's a good thing too, because it really would have eviscerated the soft money limits.
Why was the FEC vote 6-0, when we've been seeing lots of 3-3 FEC deadlocks <http://electionlawblog.org/?s=deadlock> recently <http://electionlawblog.org/?p=19927> , with the Republican Commissioners refusing, in my view, to fairly enforce the law?
I think Jim Bopp's proposal was a bridge too far, even for the three FEC Commissioners. Not only would there have been a public outcry, but I imagine the issue would have ended up in the courts, and created great uncertainty as the 2012 election season gets into full swing. It reminds me of when Judge Kavanaugh rejected <http://electionlawblog.org/?p=14454> a lawsuit by Bopp seeking to end the soft money limits. Judge Kavanaugh, no friend of campaign finance regulation, said that the time may come when the Supreme Court would overturn McConnell and hold the soft money limits clearly imposed by Congress as unconstitutional. But until then he was bound by Congress and the Court.
So the three Republican commissioners deserve great praise today for their vote in this case, but I have low expectations going forward, given the Commissioners' recent votes in coordination and disclosure cases, as well as their position on the post-Citizens United rulemaking.
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Breaking News: Stephen Colbert Brings Temporary Bipartisan Harmony to the FEC <http://electionlawblog.org/?p=19978>
Posted on June 29, 2011 <http://electionlawblog.org/?p=19978> by Rick Hasen <http://electionlawblog.org/?author=3>
An eagle-eyed reader notes a new item <http://fec.gov/agenda/2011/mtgdoc_1138b.pdf> posted in connection with tomorrow's meeting of the FEC: amendments to Draft A <http://fec.gov/agenda/2011/mtgdoc_1138a_and_b.pdf> of the Colbert advisory opinion, proposed by five of the six commissioners (all besides Republican Commissioner McGahn). This signals that things will go very smoothly (and I would guess rather quickly) at tomorrow's FEC meeting.
The draft comes closer to the position of the Democratic Commissioners rather than the Republican Commissioners' initial position, and it seems to lessen the possibility that the Colbert opinion could have (inadvertently) opened up a wide expansion of the "press exemption" to further undermine campaign finance laws.
Why would the Republican commissioners have agreed to this? The likely reason, as my tipster suggests and I agree, is the negative publicity that would come to the Republican commissioners had the FEC deadlocked and not issued an AO resolving all of Colbert's issues.
But don't worry. Once the Colbert circus leaves the FEC tomorrow, the agency will go back to its usual partisan deadlocks and Republican Commissioner obstructionism, and be as good as dead <http://electionlawblog.org/?s=as+good+as+dead> .
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Posted in campaign finance <http://electionlawblog.org/?cat=10> , chicanery <http://electionlawblog.org/?cat=12> , federal election commission <http://electionlawblog.org/?cat=24> | Comments Off
How is the FEC Like General Franco? <http://electionlawblog.org/?p=19887>
Posted on June 28, 2011 <http://electionlawblog.org/?p=19887> by Rick Hasen <http://electionlawblog.org/?author=3>
It is still <http://en.wikipedia.org/wiki/General%C3%ADssimo_Francisco_Franco_is_still_dead> dead <http://www.slate.com/id/2282257/> . BNA <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21230839&vname=mpebulallissues&fn=21230839&jd=a0c8g0p2b8&split=0> :
The Federal Election Commission has deadlocked over whether to proceed with an enforcement case involving allegations that Christine O'Donnell's 2010 campaign for the U.S. Senate in Delaware was illegally coordinated with the political action committee of the Tea Party Movement.
A report from the FEC general counsel's office recommended an investigation of the unsuccessful campaign of O'Donnell, a Republican, as well as the Tea Party organization, called Our Country Deserves Better PAC-TeaPartyExpress.org.
The subscription-only BNA report details additional new documents showing campaign finance obstructionism by the three Republican FEC commissioners.
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"Draft Limiting 'Super PAC' Fund-Raising May Not Be FEC's Last Word on Question" <http://electionlawblog.org/?p=19632>
Posted on June 24, 2011 <http://electionlawblog.org/?p=19632> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21191867&vname=mpebulallissues&fn=21191867&jd=a0c8e1d4d4&split=0> on the draft advisory opinion on next week's agenda: "A draft advisory opinion ruling released by the Federal Election Commission would reject a proposal to allow national officials to help so-called Super PACs raise unlimited contributions....However, FEC officials said June 24 that they expect a competing draft to be released before the FEC meets to consider the pending advisory opinion on Super PAC fund-raising. The yet-unreleased draft may conclude that there should be no restrictions on federal and party officials' fund-raising for these PACs."
Let's be clear: that competing proposal would get party leaders back into raising soft money. If the FEC deadlocks again, and this leads to a green light to such a turn of events, it would be a very bad development in my opinion-reversing the other pillar of McCain-Feingold. It is not clear to me whether there could be preemptive court action if, as I expect could well happen, the FEC deadlocks on this issue on party lines.
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"U.S. Federal Election Commission Deadlocks on Greater '12 Donor Disclosure" <http://electionlawblog.org/?p=19232>
Posted on June 15, 2011 <http://electionlawblog.org/?p=19232> by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg reports <http://www.bloomberg.com/news/2011-06-15/u-s-federal-election-panel-considers-increased-donor-disclosure-for-2012.html> . Quoth Craig Holman: "I've never seen an FEC this bad before..They're just giving the green light to everyone saying, 'We're not going to enforce the laws; you can do whatever you want.'"
As I've said, the FEC is as good as dead <http://www.slate.com/id/2282257/> .
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Posted in campaign finance <http://electionlawblog.org/?cat=10> , federal election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Pattern of FEC Deadlocks Continues In Cases Involving Website, Disclaimers" <http://electionlawblog.org/?p=18874>
Posted on June 7, 2011 <http://electionlawblog.org/?p=18874> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21033513&vname=mpebulallissues&fn=21033513&jd=a0c8a4d2w2&split=0> . It also has a report on Danielczyk <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21033513&vname=mpebulallissues&fn=21033513&jd=a0c8a4d2w2&split=0> and a possible ethics investigation <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21033514&vname=mpebulallissues&fn=21033514&jd=a0c8a4d2y5&split=0> of Rep. Weiner.
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FEC Dismisses Case Against O'Donnell; Reasons Unclear <http://electionlawblog.org/?p=18646>
Posted on June 2, 2011 <http://electionlawblog.org/?p=18646> by Rick Hasen <http://electionlawblog.org/?author=3>
Here <http://www.politico.com/news/stories/0611/56122.html> 's a Politico report. There's a delay before the FEC releases its file. We'll have to see if this dismissal is because a majority of the Commission found no problem with O'Donnell's conduct, or if we have on our hands yet another 3-3 partisan deadlock.
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"FEC Appears Deadlocked, Postpones Vote On Party Request to Fund Litigation Costs" <http://electionlawblog.org/?p=17722>
Posted on March 16, 2011 <http://electionlawblog.org/?p=17722> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=20071783&vname=mpebulallissues&fn=20071783&jd=a0c6v2z8e7&split=0> .
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"Secret campaign ad financing in offing as FEC is deadlocked" <http://electionlawblog.org/?p=17588>
Posted on February 28, 2011 <http://electionlawblog.org/?p=17588> by Rick Hasen <http://electionlawblog.org/?author=3>
The LA Times offers this report <http://www.latimes.com/news/nationworld/nation/la-na-election-commission-deadlock-20110228,0,2505157.story> .
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"The FEC Is As Good As Dead; The new Republican commissioners are gutting campaign finance law." <http://electionlawblog.org/?p=17343>
Posted on January 25, 2011 <http://electionlawblog.org/?p=17343> by Rick Hasen <http://electionlawblog.org/?author=3>
I have written this Jurisprudence column <http://www.slate.com/id/2282257/> for Slate. It begins:
Last week, the press was full of retrospectives on the one-year anniversary of the Supreme Court's decision in Citizens United v. FEC, which freed corporate cash for use in federal elections. The Federal Election Commission, the six-member bipartisan body charged by Congress with administering and enforcing federal campaign finance laws, marked the anniversary with a 3-3 partisan deadlock over proposed rules to revamp those laws in light of the Citizens United opinion. Unfortunately, this was business as usual at the FEC: For the past several years the three Republican FEC commissioners have blocked enforcement of much of what remains of federal campaign finance law. As we enter the 2012 election season, the FEC is as good as dead, and the already troubling campaign finance world of secret unlimited donations is bound to get worse.
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CU Anniversary Roundup <http://electionlawblog.org/?p=17306>
Posted on January 21, 2011 <http://electionlawblog.org/?p=17306> by Rick Hasen <http://electionlawblog.org/?author=3>
Political Activity Law rounds up <http://politicalactivitylaw.com/2011/01/21/in-this-a-m-political-law-report-almost-all-citizens-united-on-its-one-year-anniversay/> the opeds, including by Joel Gora <http://online.wsj.com/article/SB10001424052748704881304576093862005277084.html?mod=googlenews_wsj> (WSJ), Bossie and Olson <http://www.washingtonpost.com/wp-dyn/content/article/2011/01/20/AR2011012005149.html> (WaPo), and Jamie Raskin <http://www.huffingtonpost.com/jamie-raskin/happy-birthday-citizens-u_b_811681.html> (Huffpo). He also links to an NPR report <http://www.npr.org/2011/01/21/133083209/a-year-later-citizens-united-reshapes-politics> .
See also this BNA report <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=19020632&vname=mpebulallissues&fn=19020632&jd=a0c6b9f7v1&split=0> on the FEC's deadlock yesterday.
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FEC Has 3-3 Partisan Split on Citizens United Rulemaking <http://electionlawblog.org/?p=17301>
Posted on January 20, 2011 <http://electionlawblog.org/?p=17301> by Rick Hasen <http://electionlawblog.org/?author=3>
As expected <http://electionlawblog.org/archives/018544.html> , the FEC has deadlocked 3-3 on the NPRM. Here <http://fec.gov/members/statements/GOPCommissionersCNPRMStatement1-20-11.pdf> is a statement of the three Republican commissioners. If and when there is a statement from the Democratic commissioners, I'll link.
UPDATE: Here <http://www.fec.gov/members/bauerly/statements/CLB_ELW_Statement_on_C_%20rulemaking.pdf> is a statement from Democratic Commissioners Bauerly and Weintraub.
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Another Day, Another BNA Report on a Partisan Deadlock at the FEC <http://electionlawblog.org/?p=17296>
Posted on January 20, 2011 <http://electionlawblog.org/?p=17296> by Rick Hasen <http://electionlawblog.org/?author=3>
See Commissioners Deadlock on Case Involving Americans for Job Security, Buck Campaign <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=19009496&vname=mpebulallissues&fn=19009496&jd=a0c6b7a1x0&split=0> .
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"FEC Seems Headed for Continued Deadlock On Rule Following Citizens United Decision" <http://electionlawblog.org/?p=17282>
Posted on January 18, 2011 <http://electionlawblog.org/?p=17282> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=19006139&vname=mpebulallissues&fn=19006139&jd=a0c6b5a6c8&split=0> on an agenda <http://www.fec.gov/agenda/2011/agenda20110120.shtml> following a sad, predictable pattern:
A 143-page draft expected to be supported by the FEC's three Democratic commissioners includes provisions that could require disclosure of all contributors above a threshold level to groups spending money on federal campaigns. The Democratic draft also includes a proposal to restrict campaign spending by companies that have more than a minimum level of ownership or control by foreign nationals.
A rival 91-page draft believed to be backed by the three Republican commissioners excludes the proposals on disclosure and foreign nationals and concentrates more narrowly on eliminating existing regulatory provisions that restrict campaign spending by corporations and unions.
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"FEC Deadlocks on Whether E-Mail To Sean Hannity Followers Broke Law" <http://electionlawblog.org/?p=17255>
Posted on January 15, 2011 <http://electionlawblog.org/?p=17255> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=18964515&vname=mpebulallissues&fn=18964515&jd=a0c5x2q4w9&split=0> .
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"FEC Deadlocks 3-3 on Charges Involving Conduit Contributions, Coordinated Spending" <http://electionlawblog.org/?p=17210>
Posted on January 7, 2011 <http://electionlawblog.org/?p=17210> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA offers this report <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=18933706&vname=mpebulallissues&fn=18933706&jd=a0c5w1m6a0&split=0> .
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"FEC Deadlocks on PAC Advisory Request: How the lack of a ruling impacts the future of PACs" <http://electionlawblog.org/?p=15938>
Posted on September 28, 2010 <http://electionlawblog.org/?p=15938> by Rick Hasen <http://electionlawblog.org/?author=3>
The Strategist offers this analysis <http://campaign.r20.constantcontact.com/render?llr=pazqtmdab&v=001KOjYle_zlG_UZ6hIQhSudZomLvvg4hQ1PkKfORHIB1wLvv0xdoyTl-7jaLshSBs-RTdKFSNQJL-hmH1naZ6ADfpk_20S9znl9_PV9Pi_Gkk%3D> .
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"FEC Deadlocks on Advisory Opinion Bid Asking for Unlimited Contributions to PAC" <http://electionlawblog.org/?p=15909>
Posted on September 24, 2010 <http://electionlawblog.org/?p=15909> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=17833997&vname=mpebulallissues&fn=17833997&jd=a0c4g1q8d7&split=0> .
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May 28 CRS Report on DISCLOSE Act <http://electionlawblog.org/?p=14968>
Posted on June 3, 2010 <http://electionlawblog.org/?p=14968> by Rick Hasen <http://electionlawblog.org/?author=3>
Yesterday I wrote this post <http://electionlawblog.org/archives/016121.html> about a new CRS report which mentions the FEC's potential role in enforcing the DISCLOSE Act, if it passes. I have now received a copy of the report and posted it here <http://electionlawblog.org/archives/CRS_Disclose.pdf> . Here is the relevant language about the FEC:
Importantly, FECA requires that adopting rules and developing forms (among other provisions) requires affirmative votes from at least four of the six Commissioners. A series of deadlocked votes (e.g., 3-3 ties) among members of the current Commission, however, suggests that disagreement among Commissioners is possible-particularly on controversial or ambiguous aspects of the legislation.55 If disagreements resulted in deadlock or failure to implement the law as Congress intends, the DISCLOSE Act's effectiveness could be delayed or compromised.
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"FEC Deadlocks on Soft Money" <http://electionlawblog.org/?p=14924>
Posted on May 27, 2010 <http://electionlawblog.org/?p=14924> by Rick Hasen <http://electionlawblog.org/?author=3>
CQ Politics reports <http://blogs.cqpolitics.com/eyeon2010/2010/05/fec-deadlocks-on-soft-money-qu.html> : "The fourth time was not the charm: the Federal Election Commission could not agree Thursday on whether members of Congress could raise unlimited funds for organizations pushing state ballot initiatives."
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"New FEC Draft Would Grant AO Request To Preempt State Laws Barring 'Robocalls'" <http://electionlawblog.org/?p=13948>
Posted on January 9, 2010 <http://electionlawblog.org/?p=13948> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=15896914&vname=mpebulallissues&fn=15896914&jd=a0c1u9y3w5&split=0> : "The existence of the new draft appeared to indicate that some in the FEC now are considering granting the American Future Fund request. Such a move would override laws in about a dozen states that currently ban or restrict nearly all automatically placed calls, including calls from federal political committees."
My prediction: 3-3 partisan deadlock.
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"Deadlocked FEC Vote Dismisses Charges Of Illegal Contributions by Florida Company" <http://electionlawblog.org/?p=13841>
Posted on December 12, 2009 <http://electionlawblog.org/?p=13841> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=15835185&vname=mpebulallissues&fn=15835185&jd=a0c1q6v8t3&split=0> on another 3-3 partisan split. In this case, though employees of the company investigated went to jail for illegal contributions, the FEC Republican commissioners voted against enforcement against the company under investigation. "Documents placed on the FEC website Dec. 10 indicated that the PBSJ case-designated Matter Under Review (MUR) 5903-was dropped after the six FEC commissioners deadlocked <http://eqs.sdrdc.com/eqsdocs/29044253724.pdf> 3-3, along party lines, on an FEC staff recommendation <http://eqs.sdrdc.com/eqsdocs/29044253895.pdf> to pursue the matter."
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"FEC votes to render no opinion on Brunner campaign plan" <http://electionlawblog.org/?p=13655>
Posted on November 5, 2009 <http://electionlawblog.org/?p=13655> by Rick Hasen <http://electionlawblog.org/?author=3>
And it was not <http://www.columbusdispatch.com/live/content/local_news/stories/2009/11/05/brunner_fec.html?sid=101> because of a partisan deadlock.
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"Election Commission Decisions Deadlocking on Party Lines" <http://electionlawblog.org/?p=13469>
Posted on September 27, 2009 <http://electionlawblog.org/?p=13469> by Rick Hasen <http://electionlawblog.org/?author=3>
The NY Times offers this report <http://www.nytimes.com/2009/09/27/us/politics/27elect.html> .
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"Commissioners Deadlock Again on Rulings About Key Campaign Finance Law Questions" <http://electionlawblog.org/?p=13166>
Posted on July 30, 2009 <http://electionlawblog.org/?p=13166> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=14103976&vname=mpebulallissues&fn=14103976&jd=a0b9e6r4f3&split=0> ($).
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"FEC Ready to Consider Competing Drafts Of Advisory on 'Political Committee' Status" <http://electionlawblog.org/?p=13103>
Posted on July 16, 2009 <http://electionlawblog.org/?p=13103> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=13967070&vname=mpebulallissues&fn=13967070&jd=A0B9A2K1J2&split=0> ($): "The Federal Election Commission is set to consider July 16 two competing draft advisory opinions regarding a key legal issue - 'political committee' status - with the dueling drafts suggesting that the FEC commissioners may again be headed for deadlock over a contentious question of campaign finance law. The rival rulings drafted by FEC staff attorneys respond to a request for an advisory opinion (AO 2009-13) on behalf of a consulting company called Black Rock Group. The company is headed by two veteran political professionals with strong ties to Republican candidates and organizations, Carl Forti and Michael Dubke."
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FEC Republican Commissioners Go on the Offensive <http://electionlawblog.org/?p=13091>
Posted on July 14, 2009 <http://electionlawblog.org/?p=13091> by Rick Hasen <http://electionlawblog.org/?author=3>
Caroline Hunter <http://www.rollcall.com/issues/55_6/guest/36730-1.html?type=printer_friendly> (Roll Call): "Any superficial allegations about what has happened over the past year reflect fundamental misperceptions about why the commission exists and how the commission operates. As borne out by the FEC's deliberately crafted and statutorily prescribed structure, limitations and powers, the law is not currently as some envision it."
Don McGahn <http://www.politico.com/news/stories/0709/24874.html> (Politico): "One choice is for commissioners to reject this activist approach, regardless of how the resulting 'deadlock' is portrayed. I have done just that."
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FEC Considering Alternative Drafts AOs on Coleman Paying His Legal Bills with FEC Funds <http://electionlawblog.org/?p=12903>
Posted on June 19, 2009 <http://electionlawblog.org/?p=12903> by Rick Hasen <http://electionlawblog.org/?author=3>
See here <http://minnesotaindependent.com/37285/fec-coleman-campaign-lawsuits> . It is possible that the FEC will adopt a different position than those in these drafts, or that there could be a deadlock.
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"Reformers Fear Quick Vote on Sullivan Could Discourage Other Changes at FEC" <http://electionlawblog.org/?p=12889>
Posted on June 17, 2009 <http://electionlawblog.org/?p=12889> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA has a must-read <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=13006704&vname=mpebulallissues&fn=13006704&jd=A0B8W7Y3X6&split=0> (or at least must-read if you have a paid subscription) report. "Despite these complaints [about deadlock at the FEC, officials and outside observers indicate privately that McGahn and Walther apparently continue to benefit from strong support on the part of key congressional leaders, including Senate Republican Leader Mitch McConnell (R-Ky.) and Senate Majority Leader Harry Reid (D-Nev.). There appears to be little support on Capitol Hill for replacing either or both until sometime in 2010, at the earliest...Another veteran reformer, Craig Holman of the watchdog group Public Citizen, said he was surprised in May when Obama nominated Sullivan to replace Weintraub but mentioned nothing about replacement of other FEC commissioners, including McGahn. Holman noted that Weintraub, the one commissioner now slated for replacement, has been among the most vocal at the FEC in criticizing the Republican commissioners for voting to drop enforcement cases."
It confirms my fears that there's nothing coming out of the Obama administration on FEC reform in the near term, and that the pattern of 3-3 splits along party lines (primarily for ideological, not narrow party, reasons) will continue. At worst, soon-to-be Commissioner Sullivan will vote with the three Republicans in rulemakings and on AOs to further weaken enforcement at the FEC. If trends continue, expect to see much less regulation, and much less enforcement of regulation, as we enter the 2010 and 2012 election.
I will have more later today on the newest schism at the FEC.
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"New FEC Pick Must Respect Law's Boundaries" <http://electionlawblog.org/?p=12878>
Posted on June 16, 2009 <http://electionlawblog.org/?p=12878> by Rick Hasen <http://electionlawblog.org/?author=3>
Steve Hoersting has written this Roll Call oped <http://www.rollcall.com/issues/54_146/guest/35852-1.html> . A snippet: "The unease over Sullivan simmering among self-styled reform organizations is an extension of their attacks on the FEC for "partisan deadlocks" and a supposed failure to enforce "the law." However, the split votes represent genuine disagreements between the commissioners and are shaped by Supreme Court rulings- not partisanship or flouting the law."
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"Senate Panel To Vote on Federal Election Commission Nominee" <http://electionlawblog.org/?p=12833>
Posted on June 11, 2009 <http://electionlawblog.org/?p=12833> by Rick Hasen <http://electionlawblog.org/?author=3>
CQ Politics offers this report <http://www.cqpolitics.com/wmspage.cfm?docID=news-000003140097> . BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=12914656&vname=mpebulallissues&fn=12914656&jd=A0B8W1M7K8&split=0> ($) on bipartisan support for Sullivan, and says: "Schumer indicated during the hearing that he was aware of concerns about the FEC's recent operations, including an increasing number of 3-3 deadlocked votes on enforcement matters and other items. The chairman indicated that his committee may focus on further FEC oversight in the future but did not want to bog down the Sullivan nomination."
A hearing on the problems at the FEC would be quite warranted <http://electionlawblog.org/archives/013813.html> . I wonder if Mr. Sullivan, if confirmed, will be joining Commissioner Bauerly (former counsel to Senator Schumer) in these partisan votes and statements of reasons. Commissioner Walther has generally voted with Bauerly and Weintraub, but he has not joined Bauerly and Weintraub in many of their statements of reasons in cases splitting the commissioners on party lines.
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"Latest FEC Deadlock Frees McCain From Charges of Raising 'Soft Money'" <http://electionlawblog.org/?p=12770>
Posted on June 1, 2009 <http://electionlawblog.org/?p=12770> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA Money and Politics Report offers this report <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=12879701&vname=mpebulallissues&fn=12879701&jd=A0B8U9M8N4&split=0> ($). Meanwhile, the FEC commissioners are even splitting along party <http://eqs.nictusa.com/eqsdocs/29044241171.pdf> lines <http://eqs.nictusa.com/eqsdocs/29044241180.pdf> over the "reason to believe" standard for investigations.
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"The Republican Commissioners and the Meaning of the Deadlocks at the FEC" <http://electionlawblog.org/?p=12702>
Posted on May 19, 2009 <http://electionlawblog.org/?p=12702> by Rick Hasen <http://electionlawblog.org/?author=3>
Written version of a recent presentation <http://www.moresoftmoneyhardlaw.com/news.html?AID=1452> by Bob Bauer.
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Franz on FEC Deadlocks <http://electionlawblog.org/?p=12686>
Posted on May 15, 2009 <http://electionlawblog.org/?p=12686> by Rick Hasen <http://electionlawblog.org/?author=3>
Responding to this post <http://electionlawblog.org/archives/013660.html> , Mike Franz sends along the following thoughts:
I saw your post on FEC deadlocks-I've been pondering this myself, especially in light of my forthcoming piece. I don't have the vote data updated yet for this current time period, but my suspicion is that this is very unprecedented. And very much an indication of increased partisanship on the Commission.
If I read the Wal-Mart statements correctly (and I only scanned them), the Democratic Commissioners voted against the advice of the General Counsel's report. Granted, this action was for stronger regulation, but the perception-I believe-is that GOP commissioners "disrupt" the regulatory process by dissenting from the Democratic Commissioners' AND the General Counsel's desire to more strongly enforce the law. In other words, in the Wal-Mart case, the GOP commissioners were voting WITH the recommended legal advice.
All told, the argument I make in the paper, that Commissioners dissent more often now than in years past, is confirmed with the FEC in the last year (this despite my not having the data on this last year). But I don't think I expected this many 3-3 splits. I still feel that much of this current partisanship is driven by serious disagreement about the scope of the law, and not a conscious project by GOP commissioners to undermine the spirit of the law. But maybe these views are not all that different at the end of the day.
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More FEC Deadlocks <http://electionlawblog.org/?p=12680>
Posted on May 15, 2009 <http://electionlawblog.org/?p=12680> by Rick Hasen <http://electionlawblog.org/?author=3>
Here <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=12380744&vname=mpebulallissues&fn=12380744&jd=A0B8T0M0N5&split=0> ($). Michael Franz <http://www.bowdoin.edu/~mfranz/research.htm> , are the number of deadlocks unprecedented?
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"Reform Groups Call for Change at FEC, Citing Deadlocked Votes, Case Dismissals" <http://electionlawblog.org/?p=12567>
Posted on May 1, 2009 <http://electionlawblog.org/?p=12567> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA offers this important report <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=12076124&vname=mpebulallissues&fn=12076124&jd=A0B8Q3U6Z6&split=0> ($).
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Brad Smith and Bob Bauer on FEC Deadlocks <http://electionlawblog.org/?p=12435>
Posted on April 14, 2009 <http://electionlawblog.org/?p=12435> by Rick Hasen <http://electionlawblog.org/?author=3>
Here <http://www.campaignfreedom.org/blog/detail/what-does-it-mean-when-the-federal-election-commission-deadlocks> and here <http://www.moresoftmoneyhardlaw.com/news.html?AID=1447> .
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"Deadlock: Rise of the Endless Election" <http://electionlawblog.org/?p=12412>
Posted on April 10, 2009 <http://electionlawblog.org/?p=12412> by Rick Hasen <http://electionlawblog.org/?author=3>
Politico offers this interesting report <http://www.politico.com/news/stories/0409/21049.html> .
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"FEC Deadlocks on the Rise" <http://electionlawblog.org/?p=12397>
Posted on April 9, 2009 <http://electionlawblog.org/?p=12397> by Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call offered this report <http://www.rollcall.com/issues/54_114/news/33831-1.html> on Monday ($). See also this BNA report <http://news.bna.com/mpdm/display/link_res.adp?lt=email&fname=A0B8J2N9B2&lf=eml> ($).
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"New Life for 527s? FEC Deadlocks Over Chamber of Commerce Spin-Off " <http://electionlawblog.org/?p=11828>
Posted on January 6, 2009 <http://electionlawblog.org/?p=11828> by Rick Hasen <http://electionlawblog.org/?author=3>
This post <http://womblepoliticallaw.blogspot.com/2009/01/political-gps-new-life-for-527s-fec.html> appears at "Political GPS" (Larry Norton and Jim Kahl).
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"GOP Members Deadlock FEC, Undermining Positions on 527s, Embezzlement, Disclosure" <http://electionlawblog.org/?p=11808>
Posted on January 2, 2009 <http://electionlawblog.org/?p=11808> by Rick Hasen <http://electionlawblog.org/?author=3>
BNA Money & Politics Report offers this must-read report <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=11175428&vname=mpebulallissues&fn=11175428&jd=11175428> ($).
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"FEC DEADLOCKS OVER PROPOSED ISSUE ADS: DOES THIS SIGNAL A SHIFT TO MORE PARTISANSHIP ON THE COMMISSION?" <http://electionlawblog.org/?p=11150>
Posted on October 28, 2008 <http://electionlawblog.org/?p=11150> by Rick Hasen <http://electionlawblog.org/?author=3>
Larry Norton, former FEC General Counsel and now in private practice, has started a blog with his partners. This blog post <http://womblepoliticallaw.blogspot.com/2008/10/political-gps-with-only-7-days-and.html> asks: "Does this deadlock portend 'a new era of partisanship on the Commission,' as suggested by FEC-watcher, Professor Richard Hasen? We think not."
Welcome to the blogosphere!
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"FEC Deadlocks Over Issue Ads" <http://electionlawblog.org/?p=11060>
Posted on October 23, 2008 <http://electionlawblog.org/?p=11060> by Rick Hasen <http://electionlawblog.org/?author=3>
CQ Politics offers this report <http://www.cqpolitics.com/wmspage.cfm?parm1=5&docID=news-000002978532> . With the new commissioners, will we be entering a new era of partisanship on the commission?
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Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org <http://electionlawblog.org/>
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Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org <http://electionlawblog.org/>
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