As I open the day on this Coast, allow me this last comment on the issue I
raised.
First, in making the case for "deleriction of duty"--a strong charge, I
would think--my correspondents on this site are stressing the slam-dunk
nature of the case. I agree that the case was more likely won than lost,
which is why I could not find the "news" in it that other seem to find.
Which is it: obvious, or news?
But, second, the Commissioners may have had a different view--even a
different view of constitutionality. And as Marty Lederman correctly points
out, a difference of opinion on constitutional issues is not a derelection
of duty.
Third, there is nothing in the decision which is a "rebuke". A rebuke is a
reproof or a reprimand; and there was none here. The Department choose to
seek cert, while these three Commissioners were disinclined to do so. Who
reprimanded whom? So what, really? This charge--with all due respect to
Trevor, who is absolutely a friend, notwithstanding our disagreements--this
allegation of dereliction is at bottom name-calling. As someone who
represents many people and organizations denounced regularly as "corrupt", I
tend to be somewhat sensitive to this trend in name-calling.
But finally, to respond to Fred's last post, there may well be in economic
or safety regulation a much clearer line than I am able to see in the case
of the FEC between seeking a review and losing, and declining a review and
winning. I believe and have long believed that the FEC cannot go about its
business like the FDA or the FTC, imagining that it is regulating a product
or a commercial practice. And so I am unpersuaded by appeals to the general
experience or practices of regulatory agencies. This business of regulating
political activity is blood-and-guts stuff, and the more we treat it like
regulatory activity like any other--a simple matter of "enforcing and
administering" law on a paar with any other--the more dangerous and
unsustainable over the long term it becomes. Some Commissioners may have
strong views on this subject: I note references to Commissioner's Smith
well-known expression of his views but in fairness to him, he is engaging
actively with a complicated subject that raises large issues and evokes
strong feelings: the government's role in enforcing rules restricting the
conduct of political activity. Sometimes I agree with him and other times I
do not; but he is given the matter a a great deal of thought and scholarly
attention, for which he does not merit rebukes or even criticism.
So when I consider the long course of the agency's efforts to administer the
statute--including the many occasions it unsuccessfully sought to uphold
"iffy" interpretations or "expansive" applications at the expense of
political actors--I have a hard time working up outrage over the opposition
of the three Commissioners to an appeal in Beaumont. And I surely do not
"rebuke" them, and have no evidence of any such "rebuke" by the SG or the
Supreme Court: the only "rebuke" has been inferred by some who disagree with
their position.
-----Original Message-----
From: FredWooch@aol.com
To: election-law@majordomo.lls.edu
Sent: 6/16/2003 10:04 PM
Subject: Re: analysis of Beaumont and relationship to BCRA
Come on, Bob. I know and respect you too well to believe that you are
unable to discern a difference between the FEC seeking review of a
decision that they end up losing, on the one hand, and failing to seek
review of a decision that they end up winning, on the other. And in the
Beaumont case, it was not some iffy FEC enforcement decision or
expansive interpretive regulation that was involved, but a
straightforward implementation of the Congressional statute.
Moreover, I thought your initial post asserted that it was not just your
own "personal opinion" that the Supreme Court would reverse the Court of
Appeal's decision, but that "[N]o-one--not one-- with with whom I have
discussed this case believed
for a moment that the Court would reach a different decision in this
case." Surely, with such a consensus of opinion, the 3 FEC
Commissioners who voted not to seek review must have been aware that the
cert petition might be received favorably by the Court. Under such
circumstances, it was their duty to give it a try, which is precisely
why the Solicitor General's office went ahead and filed the cert
petition anyway. Their failure to seek Supreme Court review suggests
that something more than just an objective evaluation of the likelihood
of success on the merits was involved here.
Fredric D. Woocher
fwoocher@strumwooch.com
Strumwasser & Woocher LLP
(310) 576-1233