Monday, December 22, 2014

Commissioner Goodman passes baton after stellar chairmanship

As federal agencies go, perhaps only the bungling, vindictive IRS receives more criticism than the Federal Election Commission. The tax-collecting behemoth intentionally targeted its perceived political enemies, repeatedly lied about its conduct, and then “lost” much of the evidence of its wrongdoing. It deserves little sympathy.  

The FEC is a different story. The bulk of its criticism derives from factions unwilling to acknowledge the complex mixture of statutory duties, administrative prerogatives, and constitutional rights the Commission must balance. In place of this nuance, critics employ the sophisticated homily of “Do something!!”

Leading the charge is Campaign Legal Center. In the past month alone, the group taunted the Commission as “mired in dysfunction,” “AWOL,” and “hamstrung by partisan commissioners,” who are “determined to undermine the campaign finance laws.” CLC—always heavy on bombast but often short on veracity see here, here, and here—even called for the Commission’s disbandment.  

Despite the untoward polemic, 2014 marked a productive year for the Commission under the stewardship of Chairman Lee E. Goodman. The agency updated long obsolete regulations, strengthened the party system, tackled complex, novel issues, and scheduled hearings on highly contentious topics for early next year. And according to campaign finance reporter Dave Levinthal, it did all this without the “personal hostility that plagued the commission earlier this decade.”

One of the Commission’s biggest accomplishments was updating its regulations to reflect Supreme Court holdings in Citizens United v. FEC and McCutcheon v. FEC. The elimination of about five pages of now-unconstitutional regulations should have been a minor matter but turned into an epic imbroglio.

Democrat Commissioner Ann Ravel, to her credit, quashed the needless acrimony and voted with the majority to have the regulations embody current law. The same meeting produced the Advanced Notice of Proposed Rulemaking where the Commission will take comments and hold hearings on a variety of McCutcheon-related issues, including disclosure, affiliation, and earmarking.  

The Commission also addressed and in some cases answered a variety of interesting and important topics including bitcoin contributions, cell phone banner ads, due process in enforcement, and the contours of political committee status.

Importantly the Commission also highlighted how the current legal regime hamstrings political parties. A majority voted to allow additional money for conventions (since superseded by ‘Cromnibus’) and relieved them of some reporting burdens. The Chairman and Vice Chair even participated in a panel on strengthening the parties at George Washington University.

And contrary to conventional wisdom, the Commissioners did not primarily labor in intractable deadlocks. In fact, they formed a majority on 93% of all votes, including 86% on substantive matters.

The year was not was not without challenges, however. Vice Chair Ravel hinted she would try to push the Commission beyond its statutory boundaries and into the ultra vires posture of regulating political speech on the internet. This speech currently exists free to everyone and in a forum where all advocates compete in an open, competitive market. The move, more suited for Oceania’s Ministry of Truth than the FEC, would constitute a major step backward for the Commission.

The FEC will never be the speech-stifling politburo ‘reformers’ would prefer. The Commission is one of only two federal agencies with three commissioners from each party, and only the FEC then requires a four-vote majority for action. The structure exists as a bulwark against partisan railroading. The Commission is also distinctive in considering precious First Amendment rights when deciding political speech and process issues. And it must contemplate the ramifications of Congressional inaction on highly contentious topics to ensure it does not usurp legislative prerogatives.

The delicate balance produces hyperbolic invective from Campaign Legal Center and its ilk. But the criticism doesn’t mean the Commission isn’t functioning as designed. To the contrary, 2014 was a stellar year for the FEC.

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