One of the few things Congress got right when it passed the Federal Election Campaign Act – thereby creating the Federal Election Commission (FEC) – was appointing an equal number of commissioners from both major political parties atop the agency. No matter what the agency’s bureaucrats want to do, they must usually answer to these political appointees. If a majority vote of four out of six commissioners cannot be achieved (that is, a passing vote with at least one vote from a commissioner of a different party), then the agency cannot act.
This is important because campaign finance laws, by their very nature, give the FEC the ability to punish candidates and political speakers, or even criminalize politics. At the very least, the agency must be overseen by political appointees who answer to their party, and reach some bipartisan consensus when acting against an individual or group.
This remains the bane of campaign finance “reformers.” While claiming to champion “our democracy,” they would prefer a speech czar who would vigorously investigate and pursue each and every one of their allegations of malfeasance. Since this is unlikely to happen officially, some have instead unveiled a new strategy: instead of letting the FEC’s commissioners oversee the agency’s staff of attorneys, they’ll try to make the attorneys oversee the commissioners.
The Campaign Legal Center announced yesterday that it (along with other groups like Public Citizen) will sue the FEC for not finding a reason to believe that CrossroadsGPS, a large advocacy group, failed to register and report as a political committee with the agency. This means the FEC will not be pursuing an investigation into CrossroadsGPS (which would, by itself, probably cost the group tens of thousands of dollars, possibly more). The three Democrat commissioners voted in favor of finding a reason to believe, while the three Republican commissioners voted against. The FEC’s office of legal counsel believed (as they tend to do) that further investigation was warranted.
“The suit will argue that the FEC’s dismissal of the case following the 3-3 deadlock was arbitrary, capricious, an abuse of discretion and contrary to the law.”
Well, I’ll give them points for originality, but do not actually expect the case to go anywhere.
The issues in this case are largely the same as our case Free Speech v. FEC, which is currently being considered for hearing by the Supreme Court. The issues in these cases are complex, and unnecessarily so. Basically, certain FEC commissioners, plenty of FEC attorneys, and the reform community have done everything in their power to obscure campaign disclosure laws to capture any and all forms of political speech and subject speakers to as much paperwork as possible.
Once “disclosure” was limited to speech advocating for or against federal candidates, but reformers remain concerned that speakers like Crossroads are getting their opinion out on various issues and even criticizing or praising candidates about their stances on them, which might in turn influence elections. Bring on the red tape, and punish those who won’t comply. Unfortunately, the courts have not been helpful in reining back this all-encompassing “disclosure.”
Campaign Legal’s new case will give the courts another opportunity to examine the arbitrary and capricious (that is, vague and overbroad) FEC policies and practices that hinder and often completely silence large and small political groups, and in that sense it’s a good case. However, attempting to supplant the commissioners’ authority is a transparent effort to destroy one of the FEC’s most important safeguards. If they’re successful, there will be no need to have commissioners anymore. That just might be their goal.