On Monday the FEC rejected a proposal to pass an interim rule allowing for grassroots issue ads to air during campaign season. The proposal failed on a 3-3 vote, all three Republican Commissioners voting in favor, and the three Democrats opposed. It then rejected a proposal to open rule making to write a permanent rule, on an identical vote. It then rejected a proposal to ask the staff to draft proposals for a notice of proposed rule making; again it was rejected on a 3-3 vote.
Over the weekend, afraid that the proposal might pass, the New York Times issued a typically uninformative, hysterical editorial, which we analyze here. What’s interesting is that the Times, following a long-established line of the major campaign finance regulatory groups, uses the editorial to note it’s fear that the measure would pass because the Commissioners are, "an appointed panel of major party loyalists," and "great enabler[s] of campaign loopholes." The "ever-proddable election commission" had been "prodded" by special interests into considering the exemption, one which the law specifically authorizes the Commission to make. This is typical "reformer" rhetoric, where it is an article of faith that the FEC is a corrupt body controlled by the parties and special interests.
In fact, of course, the pro-regulatory organizations have long dominated the debate about reform, and flex a lot of muscle on FEC appointments. Throughout most of the 1990s, "reformers" dominated the Commission – a Commission majority under the leadership of John McCain’s campaign finance lawyer, Trevor Potter, held sway, ably assisted by the General Counsel, Larry Noble, who eventually left the Commission to head up the "reform" group Center for Responsive Politics. During this time, the FEC was repeatedly swatted down by federal courts for statutory and constitutional overreaching and the Commission’s backlog of cases hit record levels.
In more recent years, the regulatory enthusiasts have lost their unquestioned control of the Commission, to be sure, though in 2003 John McCain held up Republican judicial appointments in what was eventually a successful effort to get Democrat Ellen Weintraub on the Commission. That Weintraub proved to be a little too independent for Senator McCain, leading him into later bouts of name-calling, doesn’t change the fact that she was a "reform" nominee.
But what is most interesting in the current situation is the adamant opposition of the three Democratic commissioners to even exploring a grassroots lobbying exemption. From my experience on the Commission, it is extremely rare for Commissioners to block even a mere notice of proposed rulemaking on an issue of importance to one or more other commissioners. And yet the Democrat Commissioners still blocked even this modest proposal, despite the fact that most of the citizen’s groups supporting the measure tilted toward the political left, and were represented by prominent Democratic lawyers. Two of the three Democratic Commissioners, Commissioners Walther and Lenhard, are currently on recess appointments – unconfirmed by the Senate, and so in office temporarily. And they would like to be confirmed. A rumour currently circulating around the Capitol is that the pro-regulatory groups and their political leaders have threatened to block the confirmation of these Democratic appointees to full terms if they had voted the other way on this issue.
If this is true, it indicates a very likely result, and one that the Commission has certainly seen before – not that parties and "special interests" rule, but rather that Commissioners yield to pressure from the media and pro-regulatory organizations and abandon projects they otherwise believe would be good policy.
A far cry from what is presented in the press, which simply trumpets the bleatings of the regulatory enthusiasts.