[EL] "FEC Deadlock Derail Matters"

[Justin Levitt]

Two sincere questions, both pertinent to a paper I'm editing at the moment.

1:  Craig, in your chart, are all of the "split" votes 3-3, along party 
lines?  That is, are any of the instances of the 25 splits in 2012 
cross-party or 4-2 decisions?  (And is the updated chart available online?)

2:  If plausible differences in constitutional and/or statutory 
interpretation aren't the cause of the splits, why aren't all of the 
enforcement votes 3-3 (or at least all of the enforcement votes 
targeting entities perceived as aligned with Republicans or Democrats)?  
That is, what explains why 25 votes in 2012 were splits, but 110 weren't?

Justin

On 2/17/2013 9:09 PM, Smith, Brad wrote:
> No, just the misrepresentation of why they occur and what they mean.
>
> /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:* Craig Holman [holman at aol.com]
> *Sent:* Sunday, February 17, 2013 8:40 PM
> *To:* Smith, Brad; law-election at uci.edu
> *Subject:* Re: [EL] "FEC Deadlock Derail Matters"
>
> 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 
> <mailto:law-election-bounces at department-lists.uci.edu> 
> [law-election-bounces at department-lists.uci.edu 
> <mailto:law-election-bounces at department-lists.uci.edu>] on behalf of 
> Craig Holman [holman at aol.com <mailto:holman at aol.com>]
> *Sent:* Sunday, February 17, 2013 6:07 PM
> *To:* law-election at uci.edu <mailto: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 <mailto:Holman at aol.com>
>
>
> -----Original Message-----
> From: Smith, Brad <BSmith at law.capital.edu <mailto:BSmith at law.capital.edu>>
> To: law-election at UCI.edu <mailto:law-election at UCI.edu> 
> <law-election at uci.edu <mailto: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 
> <mailto:law-election-bounces at department-lists.uci.edu> 
> [law-election-bounces at department-lists.uci.edu 
> <mailto:law-election-bounces at department-lists.uci.edu>] on behalf of 
> Rick Hasen [rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>]
> *Sent:* Saturday, February 16, 2013 4:05 PM
> *To:* law-election at UCI.edu <mailto: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" <http://electionlawblog.org/?p=47362>
>>
>> Posted on February 15, 2013 5:50 pm 
>> <http://electionlawblog.org/?p=47362> by Rick Hasen 
>> <http://electionlawblog.org/?author=3>
>> Bloomberg BNA 
>> <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=29745575&vname=mpebulallissues&jd=a0d6m0d6q4&split=0>:
>>
>>     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.
>>
>> Share 
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47362&title=%E2%80%9CFEC%20Deadlocks%20Derail%20Matters%20Involving%20Crossroads%20GPS%2C%20Family-Member%20Super%20PAC%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
>> federal election commission <http://electionlawblog.org/?cat=24> | 
>> 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
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> -- 
> 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
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu  <mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu  <mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130217/51621bdc/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130217/51621bdc/attachment.png>