There is an old saying in legal circles that if you have the facts on your side, argue the facts; if not, argue the law; if you have neither, pound your fist on the table. Yesterday, a number of pro-regulation groups started pounding the table harder than they have since the United States Supreme court handed down its Citizens United decision. In a letter to the leadership of the House and Senate oversight committees, the reform groups urge these committees to hold hearings exploring what they perceive as problems at the Federal Election Commission (“FEC”). Their letter alleges that the Republican Commissioners are blocking enforcement of the federal campaign finance laws and that the FEC is hopelessly broken as a result. A copy of the letter can be found here.
This letter misses the mark. The Republican Commissioners have issued numerous Statements of Reasons explaining their votes. These Statements are often dense documents that offer detailed factual and legal explanations of their votes. Recent federal court decisions such as Citizens United, Emily’s List and SpeechNow.org either support their votes or validate the justifications of their votes after the fact. While I may not agree with every vote taken by these Commissioners, they have performed a valuable service to the regulated community by offering detailed Statements of Reasons.
I believe the pro-regulation groups have not formulated an adequate response to these Statements. They have not published detailed explanations of the basis for their complaints about the Republican Commissioners’ votes. When they have issued position papers, I believe many of them fail to discuss relevant precedent that appears to contradict the pro-regulation groups’ positions. These groups, however, do not hesitate to issue press releases containing personal attacks against the Republican Commissioners on a fairly regular basis. These personal attacks may feed the press headlines, but they diminish the authority of their arguments.
On the subject of fines assessed and collected by the FEC, the FEC’s Performance and Accountability Report for 2010 contains an interesting graph that shows the fines assessed by the FEC during the last sixteen years. (The Report can be found on this page and the graph is located on page 11 of the 2010 Report.) It shows that the fines assessed in 2009 and 2010 are consistent with those assessed by the FEC from 1995 to 2002. There is a noticeable uptick in 2003-2005, the years immediately following the implementation of the McCain Feingold as the regulated community adjusted to the new draconian rules contained in the legislation. There is also a spike in the fines assessed during 2006-2008. I believe this spike was due to the fines assessed in connection with the 527 enforcement actions that applied legal theories that have been discredited or overturned by the recent federal court cases identified in this post. This graph is exhibit A as to why this discussion should focus on the merits of the issues at hand and not the personalities.
The time may in fact be at hand to engage in a sweeping discussion about the state of the federal campaign finance laws. The mechanics of how elections and political speech are financed are important topics that deserve a serious discussion, not sideshow theatrics. The First Amendment establishes the landscape for this discussion and its important protections for individuals and groups to discuss important issues of the day and the individuals who formulate government policy must be the starting point. If hearings are held or some other forum is scheduled, here is a partial list of the topics I would like to see discussed:
- Changes to the FEC rules to implement the Supreme Court’s Citizens United decision and other federal court decisions such as Emily’s List and SpeechNow.org. I believe the initial notices of proposed rulemakings (“NPRM”) should implement these decisions. If others want to explore additional topics that go beyond the four-corners of these decisions, they should be considered in separate NPRMs;
- Review of agency procedures to ensure that respondents’ due process rights are protected and that they have a meaningful opportunity to respond to the allegations against them;
- Further discussions about the use of technology by the FEC to make the campaign finance data it collects more accessible to the general public and the regulated community. This discussion should include whether the data may be released in a more open source manner so that enterprising individuals and groups may present the data in a more user friendly format; and
- Whether the FEC’s current education programs and seminars are adequate. Seems to me that one benchmark for the FEC’s success should be increasing compliance with the federal campaign finance laws though a robust training program for the regulated community.
If we need to have a discussion about the FEC’s status, let’s focus on the merits.