Paul’s post is wholly unconvincing.  The NPRM favored by the GOP commissioners was about repealing and modifying regulations that are no longer viable in the wake of Citizens United. Regulations on corporate and union facilitation of contributions, which Paul claims go beyond that, are entirely relevant to Citizens United, because they are on the books only because of the restrictions on corporate spending and restrictions on coordination.  With the former gone, those regulations definitely must be reviewed.  The Democratic commissioners, however, sought to use the rule making to launch new regulatory initiatives that are not required by Citizens United and that they know are not favored by the Republican Commissioners.  So the Democratic Commissioners are, in effect, halting the process of simplifying and repealing regulations, in some cases required by Citizens United, in others merely beneficial given that the regulations make little sense after Citizens United.

Paul should know that having a massive NPRM for the purpose of allowing he and others to predictably testify that the Commission should pass new regulations is not terribly constructive, and the Commission has Citizens United does not obligate the Commission to take on that mission.   Certainly their primary job should be to eliminate unconstitutional regulations. Essentially, the Democratic Commissioners are saying, “If we can’t do what we want, then we refuse to do what we ought and must as well.”  Such new regulations, if they must be addressed, can go in a separate rule-making.

Paul’s reference to a proposal by “Democratic/Independent” commissioners is also wholly disinegenuous, since as he knows there are no “independent” commissioners – Steve Walther is a Democrat and former counsel to Senator Harry Reid; Cynthia Bauerly is a Democrat and former staffer to Senator Schumer; and Commissioner Weintraub is a Democrat and former Democratic party lawyer and staffer.

Substantively, Paul’s earlier post is also incorrect.  Paul argues that the Commission is not enforcing the law – an age old complaint of the reform community – but his basis for doing that is merely complaining about regulations that the FEC has enacted through the Notice & Comment procedure and which have the force of law.  We understand that Paul and the folks at CLC don’t like the substance of those regulations, but that is not the same as saying that they are not in compliance with the law.  In a world of legal positivism it is tiring to hear this constant refrain from reformers that “the law” is whatever they think, rather than what the bodies to whom the task of formulating the law is delegated  - Congress, the courts, and the FEC - think.  Finally, the Supreme Court in Citizens United did not endorse whatever it is that CLC and the reform community wish to call “disclosure.”  It upheld the validity of the FECA and the FEC regulations that currently require disclosure – disclosure that Paul and CLC think is inadequate.  That is not the same as “upholding” that which Paul now wants the FEC to pass, let alone mandating it.

For starters, the Commission was not voting last week “to repeal regulation.”  Instead, the Commission was voting on whether to publish a Notice of Proposed Rulemaking, which would have invited public comment on how the Commission should amend its rules to implement the CU decision.  Only after receiving public comment—core First Amendment activity required and protected by the Administrative Procedures Act—would the FEC then decide how to amend its rules.

Importantly, the NPRM preferred by the Republican Commissioners was not limited to repealing regulations, as you seemingly claim it was.  Instead, the Republican-preferred NPRM was 89 pages of questions about whether and how the Commission should amend specific regulations to implement CU, including, for example, a multi-page discussion of whether and how CU impacts the ban on corporations/unions facilitating the making of contributions—an issue neither litigated nor even mentioned in CU.

Similarly, nor was the NPRM preferred by the Democratic/Independent Commissioners limited to repealing regulations.  Indeed, it cast a substantially broader net for public comment about which regulations should be amended and how.  And a broad net is appropriate in an NPRM, with public comment informing Commissioner thinking on a variety of ways to address important matters of public policy, leading, finally, to focused, well-reasoned regulations.

The mystery to me is why the Republican Commissioners are so intent on denying me and other members of the public the opportunity to exercise our First Amendment right and weigh in regarding what legal issues directly related to corporate/union IEs need to be addressed in this rulemaking.  The time for Republican Commissioners to disagree with their Democratic/Independent colleagues should come later, after the public has had the opportunity to weigh in.  Who knows . . . maybe public comment would actually change some minds.