[EL] "FEC Deadlock Derail Matters"
JBoppjr at aol.com
JBoppjr at aol.com
Mon Feb 18 11:02:06 PST 2013
Craig, if it is true that the 3-3 votes are "not pro-Democratic or
pro-Republican; they are ideological," which I also think they are, then why do
you refer to them as "partisan?" If they are ideological then the fact that
they line up as Repubs on one side and Dems on the other is just
coincidental. but referring to them as "partisan" is misleading also since it implies
that they are for political purposes. So why the "partisan" label? Jim Bopp
In a message dated 2/18/2013 9:15:53 A.M. Eastern Standard Time,
holman at aol.com writes:
Hi Justin:
Nearly all of the split votes are 3-3, but there are some cases in which a
commissioner recused him- or herself, so a split vote could be 3-2. The
split votes are not pro-Democratic or pro-Republican; they are ideological.
The Republican members have consistently voted to prevent enforcement of
much of the law against anybody, regardless of party.
I have not tried doing a content analysis of the matters subject to a
vote. Though it would be interesting to try to see if specific content matters
are subject to the deadlock phenomenon, the primary point behind these
numbers is already made.
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: Justin Levitt <jml269 at connect.yale.edu>
To: law-election <law-election at department-lists.uci.edu>
Sent: Sun, Feb 17, 2013 9:36 pm
Subject: Re: [EL] "FEC Deadlock Derail Matters"
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_
(http://law.capital.edu/faculty/bios/bsmith.aspx)
____________________________________
From: Craig Holman [_holman at aol.com_ (mailto:holman at aol.com) ]
Sent: Sunday, February 17, 2013 8:40 PM
To: Smith, Brad; _law-election at uci.edu_ (mailto: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_ (mailto:Holman at aol.com)
-----Original Message-----
From: Smith, Brad _<BSmith at law.capital.edu>_
(mailto:BSmith at law.capital.edu)
To: law-election _<law-election at uci.edu>_ (mailto: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_
(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_
(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.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=47362&title=“
FEC%20Deadlocks%20Derail%20Matters%20Involving%20Crossroads%20GPS,%20Family-Member%20Super%20PAC”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_federal election commission_ (http://electionlawblog.org/?cat=24) | Comments
Off
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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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
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