Friday, October 10, 2014

When “F” Stood for Freedom at the FEC

In a series of crucial votes yesterday, the Federal Election Commission defied Washington’s hyper-partisan zeitgeist and its own recent history to garner votes necessary to update its regulations and strengthen the political parties. In rulemakings concerning Citizens United v. FEC and McCutcheon v. FEC, the Commission broke longstanding deadlocks and looked to the future with an advance notice of proposed rulemaking. The Commission also approved an Advisory Opinion Request, which will allow the political parties to set up separate accounts to fund their conventions within FECA’s hard money limits.

The rulemaking votes were the result of months-long negotiations involving Chairman Lee E. Goodman, Vice Chair Ann M. Ravel, and Commissioner Caroline C. Hunter. With each vote, the Commission fulfilled its statutory duties in a manner consistent with the First Amendment. The votes added clarity to the Commission’s prolix regulations and institutionalized political freedoms mandated by the Supreme Court.

The most controversial and long overdue vote involved Citizens United. Vice Chair Ravel, recognizing the Commission’s duty to provide clarity to the public, joined the three Republicans in a show of conciliation that could bode well for future rulemakings.

This vote was significant for several reasons. First, the four-year gap between the Supreme Court holding and the finalized regulations fomented both confusion and derision by the regulated community.

Second, the regulations append a note to 11 CFR 114.2 to acknowledge the further regulatory changes brought on by two lower court cases subsequent to Citizens United, v. FEC and Carey v. FEC, which judicially sanctioned Super PACs and hybrid PACs respectively.

Finally, the approved regulations go beyond speech to core political activity. Corporations and unions now have clearer guidance and fewer restrictions in areas such as voter registration, get-out-the-vote activity, voter guides, voting records, and endorsements.

In contrast to the wrangling over Citizens United, the Commissioners voted unanimously to approve both McCutcheon-related measures: an interim rulemaking eliminating aggregate contribution limits and an advance notice of proposed rulemaking covering earmarking, affiliation, joint fundraising committees, and disclosure.

As the RNLA stated previously, Justice Roberts raised all the issues in the proposed rulemaking in McCutcheon. Furthermore, it is the Commission’s duty to seek public input on the clarity and viability of the current regulations as anti-corruption and anti-circumvention measures. All Commissioners expressed the desire to hear a wide range of voices on these issues. And the 90-day window should allow staunch First Amendment advocates time to counter the sure deluge of reformer commentary promoting speech-suffocating rules.  

As important as the rulemakings, the Commissioners approved an Advisory Opinion submitted by the RNC and DNC. The Opinion allows the parties to establish convention committees to raise funds under a separate contribution limit because convention committees are “national committees” under the Federal Election Campaign Act.

A majority of Commissioners were not swayed by dire warnings from the reformer community of ‘slippery slopes.’ Instead, they based their decision on regulatory discretion and the benefits to political parties who are currently at a comparative disadvantage to other political groups. “Parties are critical to the health of democracy,” stated Chairman Goodman, “where we can exercise our regulatory authority to empower the parties, we can strengthen the political system. That’s what we did.”

For all the opprobrium the Commission has suffered in the past few years, it now seems poised to demonstrate principled leadership on contentious issues despite continued intransigence from some quarters.

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