[EL] "FEC Deadlock Derail Matters"

Sun Feb 17 17:40:20 PST 2013

So, Brad, the numbers do indeed frustrate you.

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com

-----Original Message-----
From: Smith, Brad <BSmith at law.capital.edu>
To: law-election <law-election at uci.edu>
Sent: Sun, Feb 17, 2013 8:16 pm
Subject: Re: [EL] "FEC Deadlock Derail Matters"

Craig's post, like the Bloomberg BNA story that launched this thread, also demonstrates why it is so hard for people to understand the FEC. 

The debate in the Agency is rather obviously not between those who "believe in the law and those who don't" (unless Craig means to put he and all the reformers who don't believe in Citizens United and other Supreme Court decisions in the latter camp), but between different understandings of what the law requires and/or permits. For years the regulatory speech camp which Craig represents has sought to portray the FEC as a fight of good against evil, and to suggest that anyone who doesn't agree with their particular interpretations of the law is in actuality simply refusing to enforce the law. Most of the lawyers on this list, however, are sophisticated enough to understand that "the law" is not what a handful of advocacy groups seeking more regulation say it is (a kind of "brooding omnipresence," apparently), but rather what Congress has actually passed and how it is interpreted by the body assigned by Congress to administer it, subject to judicial review. Even error is not a malignant refusal to do one's duty, but that possibility seems not to occur to the anointed.

For years many persons in the self-described "reform community" have regularly maligned, in the most casual, off-hand manner, and deeply cynical manner, the integrity of all those who disagree with them on what the law requires or permits. It's a low-rent practice that ought to stop. 

Meanwhile, Public Citizen's press release again cynically tries to sell this as a problem of "partisanship" rather than one of ideology. A 3-3 vote is a 3-3 vote, but in thinking about whether and how it matters (no doubt Craig would be happier if 4 commissioners "did not believe in the law" and the votes were 4-2), it is important whether in fact it is simply raw partisanship on display or whether there are legitimate (or even illegitimate) disagrees about the meaning of the law and its proper and best interpretations. It is true that the ideological division breaks along partisan lines. And having accused the "reform community" of cynicism, perhaps I am myself too cynical in presuming that Public Citizen likes the "partisan" spin simply because they see that as getting more traction with the public and credulous journalists. But I believe it is a conscious spin because they recognize that when they say the issue is "partisan," people will think that Commissioners from each party are simply protecting their own, rather than having serious debate over the law. It is quite obvious (at least to all those who seriously follow the Commission, including Craig) that any problem is not because Commissioners from each party simply seek to protect their own. But that sounds better than saying that the law operates in a difficult area of First Amendment liberties, and there is no easy answer to issues of corruption in politics. 

It would also be interesting to go back and look at how little the argument of the anti-FEC lobby has changed. When the percentages of 3-3 votes were much lower (see Craig's charts), as during my time on the Commission, we heard exactly the same arguments alleging "partisan gridlock" etc. etc. that we hear today. This might lead one to think that while it is (for Craig, at least) a happy coincidence that 3-3 votes are increasing, that's not really what is important to most critics. What is important is to explain away the failures of the regulatory regime in a way that does not suggest a complex issue of First Amendment liberties and practical realities. Commissioners come and go; Presidents come and go; General Counsels come and go. There is legislation and there are judicial decisions, and the Supreme Court swings towards greater deference to the First Amendment and then away, then back again. "Loopholes" are eliminated and new ones discovered. But one thing is always the same - the failure of the reform project to acheive meaningful improvements in government or in positively affecting the lives of citizens is not a problem with the law or the underlying principles of "reform," but with the people selected to run things, who simply don't believe in "the law." To consider that possibility would truly turn worlds upside down.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Craig Holman [holman at aol.com]
Sent: Sunday, February 17, 2013 6:07 PM
To: law-election at uci.edu
Subject: Re: [EL] "FEC Deadlock Derail Matters"

I just updated the figures on FEC split votes. Besides the numbers that so frustrate Brad -- of which I need not debate, the numbers speak for themselves -- are the numbers of radically declining actions. The FEC is not just immobilized between those commissioners who believe in the law and those who don't (the deadlock numbers), it is actually deadlocking on far, far fewer actions under consideration.

So, while split votes on enforcement matters has increased eight-fold, the number of actions under consideration has plummeted ten-fold.

The dysfunction within the commission clearly is demoralizing the staff of the agency as well. Though I have the highest regard for the staff, it is hard to work well when the commissioners will not.

Updated chart is attached.

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com

-----Original Message-----
From: Smith, Brad <BSmith at law.capital.edu>
To: law-election at UCI.edu <law-election at uci.edu>
Sent: Sat, Feb 16, 2013 5:19 pm
Subject: Re: [EL] "FEC Deadlock Derail Matters"

This is the type of reporting that is so frustrating. 

First, if a faculty, for example, has a rule requiring a two-thirds vote for tenure, we wouldn't normally say that a 19-13 vote "derailed" tenure. Indeed, if you had a simple majority rule, we wouldn't usually say that a 16-16 vote was a "deadlock." We would say the person was denied tenure. If the House votes 216-216 on a measure, we don't say it "deadlocked," we say the measure lost.

Similarly, when the FEC votes 3-3 not to find reason to believe, it has not found reason to believe that the law was broken, the predicate for an investigation under the statute.

Second, the article not only tells us that the Commission "deadlocked," but that it "deadlocked along party lines." Factually accurate, true. But pretty much everyone who follows the Commission agrees that partisanship is not the reason for 3-3 votes. It would be sort of like writing, "President Obama today nominated one Republican and one Democrat to seats on the FEC...," and leaving it at that. Such an act would not really be a demonstration of bipartisanship, but if it were not explained later why he nominated a Republican, it is simply misleading. 

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

From:law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Saturday, February 16, 2013 4:05 PM
To: law-election at UCI.edu
Subject: Re: [EL] ELB News and Commentary 2/16/13

“FEC Deadlocks Derail Matters Involving Crossroads GPS, Family-Member Super PAC”
Posted onFebruary 15, 2013 5:50 pm by Rick Hasen

Bloomberg BNA:

The Federal Election Commission dismissed two cases involving allegations of illegal coordination between congressional candidates and outside spending groups after the commissioners deadlocked along party lines regarding whether the cases should be investigated, the FEC announced Feb. 15.
One case involved Crossroads GPS, among the most prominent Republican-leaning nonprofit groups involved in recent campaigns. Designated Matter Under Review (MUR) 6368, the case involved allegations that the group’s founder, Republican strategist Karl Rove, illegally coordinated efforts with then-Rep. Roy Blunt’s (R-Mo.) successful 2010 campaign for U.S. Senate.
The other case (MUR 6611) involved a super PAC funded by the mother of Laura Ruderman, an unsuccessful Democratic candidate for the U.S. House in 2012. The case was the FEC’s first consideration of a single-candidate PAC financed by the candidate’s family, according a written statement from three of the commissioners.

Posted incampaign finance,federal election commission |Comments Off 

-- 

Rick Hasen
Chancellor's Professor of Law and Political Science
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
http://electionlawblog.org

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
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
http://electionlawblog.org

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Law-election mailing list
Law-election at department-lists.uci.edu
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