This is an interesting take on the issue, because I do not recall that over
the many years that the FEC voted, often unanimously, to take cases to the
Supreme and other courts, only to be swatted down on constitutional and
other grounds, anyone associated with the reform community lamented these
more direct "rebukes" to the exercise of their authority. 

The suggestion that the Commission has a duty to "enforce and
administer the law" sails over the point that this is a duty that involves,
for this agency like others, the exercise of discretion in choosing the
cases it will bring or appeal.  It is not "a dereliction of their
responsibilities" to decide against filing an appeal that turns out to be a
winner, any more than it is such a dereliction to file one that is a dead
loser. I say this, knowing that those who were required to defend, at great
expense and over a number of years, the cases that the Commission eventually
lost, might feel very differently about the question of whether there was
agency "dereliction". For my part, on the not infrequent occasions that the
FEC crashed into a wall with one of its forays into court, I did not believe
the agency to be derelict--only misguided. 

And while I have may thought that the case was clear on the merits, my
personal view has no bearing on what that these three or any of the
Commissioners believed about the outcome or decided to do--much as I might
wish otherwise for a whole host of reasons.

-----Original Message-----
From: FredWooch@aol.com
To: Bauer, Bob-WDC; rick.hasen@mail.lls.edu; election-law@majordomo.lls.edu
Sent: 6/16/2003 8:28 PM
Subject: Re: analysis of Beaumont and relationship to BCRA

In a message dated 06/16/2003 6:11:08 PM Pacific Daylight Time,
RBauer@perkinscoie.com writes:



  But the best of all the claims of the day--the truly sparkling
moment in today's "PR"--was the suggestion of one reform organization
that
the case was a "substantial rebuke" to the FEC, because three
Commissioners
did not support an appeal to the Supreme Court.  I am confident that the
Supreme Court cared deeply about an appeal in this case, believing that
the
Commission was duty-bound to seek the inevitable reversal, and that
additional votes were cast with the majority to send a message to those
three Commissioners that they had acted irresponsibly in refusing to do
what
others knew to be right.



I have not read the "offending" PR release from the reform organization,
so I do not know the precise context in which the "rebuke" statement was
made, but I would have to agree that -- completely aside from whether
the Supreme Court cared about what the FEC did and fully believing that
the Court did not rule the way it did in order to "send a message" to
the 3 FEC Commissioners who refused to vote to even file a cert petition
-- the Court's decision does indeed stand as a "rebuke" to those
Commissioners whose constitutional obligation is to enforce and
administer the laws that Congress enacted.  To not even seek review of a
decision the reversal of which you now believe was apparently a foregone
conclusion suggests more than bad prognostication by those
Commissioners, but a dereliction of their responsibilities under the
law.  In that sense, the fact that the Supreme Court upheld the
regulation that they were not even willing to defend is a rebuke to
them.

Fredric D. Woocher
fwoocher@strumwooch.com
Strumwasser & Woocher LLP
(310) 576-1233