April 14, 2009
Bob Bauer addressed the question of FEC "deadlocks" in his blog yesterday. For some background on the issue, see here (Roll Call) and here (BNA)($$). It’s a typically thoughtful Bauer post, yet there is a part of it that leaves us more than a little puzzled.
In the BNA article, I am quoted for pointing out that a 3-3 vote is a "definitive resolution" of an enforcement case that "a violation has not been found." Bauer says:
"this argument responds, in part, to an objection not really made. For those observers angered by the agency’s deadlocks, the failing is here is that the agency should have decided the case—that it should be possible to rely on the Commission to apply the law to the facts when the both law and facts, and the fit of one to the other, are fairly clear. Their point is that the agency is not being responsible when simply refusing enforcement for bureaucratic, ideological or partisan political reasons. The option of judicial intervention, these critics argue, is no excuse: the courts should not be de facto administrators, resolving issues which the administrators shirked, and there are costs and of course delays associated with litigation that are incompatible with ordinary-course enforcement."
This seems to misunderstand my point and indeed the importance of a 3-3 (i.e. a "deadlocked" -oooh!) vote. When the FEC votes 3-3 in an enforcement matter, it DOES decide the case. It HAS applied the law to the facts, and it HAS reached a result. (And if the proper result were particularly clear, the vote would not have been 3-3 but rather more likely 5-1 or 6-0).
When Bauer say that with a 3-3 vote, "The agency has, in effect, concluded that someone else will have to decide the matter," that is simply incorrect. With a 3-3 vote, the Agency HAS decided the matter. No one else needs to decide it, although of course some matters do – as with any agency – get appealed to the courts.
Look, here is the law: the FEC needs 4 votes to find a violation. If the FEC votes 3-3 not to find a violation, that means the FEC has determined that the conduct does not violate the law. For purposes of judicial review, the controlling opinion is that of the Commissioners who voted not to find a violation, and it is that reasoning that is subject to review – just as if the vote were 1-5 against finding a violation. The Courts are NOT asked to serve as "de facto administrators." The administrators who voted against finding a violation did NOT "shirk" their duty, they did their duty. If the Commission votes 3-3 against enforcement in matter A because three commissioners do not believe the conduct violates the law, and then votes 4-2 in favor of enforcement on the same legal theory in matter B, it can justifiably be accused of arbitrary and capricious enforcement, unless the change is the result of a change in enforcement policy – which the Commission could do even if the first vote had been 4-2 or 6 to nothing against enforcement. At this point we get into questions of administrative law, but they are no different than the questions any other federal agency faces when it uses adjudications to set new policy. This is one reason why using adjudication to establish new policy is sometimes frowned upon in administrative law.
In other words, having just admitted that a 3-3 vote definitively resolves a matter, Bauer reverses course and seems to buy the argument that a 3-3 vote does not definitively resolve the issue. This is, we assume, the power of the reform lobby’s line repeated over and over for many years, uncontested.
It is also worth pointing out that the Commission never, in my five plus years there, rejected an enforcement theory for "ideological" or "partisan" reasons. That is, Commissions never wrote a Statement of Reasons saying, "Partisan and ideological reasons prevent us from acting on this violation of the law." Rather, Commissioners, like administrative law judges, like Article III judges, like commissioners at other agencies, defend their decisions by appeals to legal principles and interpretations. These statements of reasons are subject to judicial review to determine if they hold water. Of course, some members of the "reform" community believe that such opinions merely mask partisan or ideological preferences (the same charge is leveled against courts, ad law judges, and other commissioners at other agencies, and also against the press releases of reformers). But that is what review is for, and it is not unique to the FEC. And it is the Agency, not the so-called "reform" organizations, that determines the meaning of the law – subject, again, to appropriate review.
The situation is admittedly different with some advisory opinions. There, a 3-3 vote sometimes leaves the Agency unable to answer the question (although if the question was previously answered in an Advisory Opinion, or is covered by the regulations, as where the requestor seeks an exemption it does definitively answer the question by not changing the existing rule). But it is on the enforcement side that "deadlock" complaint is usually made, and yet there, a "deadlock" (I think I prefer a "tie" vote) is definitive.
It is a strange view that considers the agency not to have answered a question of enforcement when it has answered that question. Look, when the U.S. House votes 434-0 with one vacancy, we know it has passed legislation. And when it votes 217-217 with one vacancy, we know it has not passed legislation. No one says, "oh, the House couldn’t decide. How do we know what to do? Should we obey or act upon the proposed law that didn’t pass, as if it had passed?" The question answers itself. There is no uncertainty as to "the law." Likewise with the FEC. A 3-3 vote decides the FEC’s view of the law in an enforcement matter.
Of course, many in the "reform" lobby wish to view the FEC as a prosecutor, not as a quasi-judicial agency. But if that is the case, then EVERY FEC decision is merely a punt to the courts to decide the issue, and it is not fair to accuse the agency of "shirking." There is nothing for it to shirk. It is simply deciding whether or not to prosecute. Of course, if the law is clear and the Agency doesn’t prosecute, that may be troubling. And that is what the reform lobby always asserts. But they merely assert it. They do not argue it, let alone prove it, because typically they cannot. I have never seen the FEC simply refuse to "enforce the law" (absent well understood discretion under Heckler v. Chaney, which is not at issue here. If you aren’t familiar with Heckler, that’s OK, it’s not relevant to the criticism here). And the Agency’s decision’s not to prosecute may be criticized on their substance, but no one should criticize them simply because the Board decision not to prosecute was a close call rather than an easy case. (We don’t recall single member agencies – i.e. prosecutors – being criticized because they agonized over a decision not to prosecute, rather than finding it an easy call.)
But we are in the camp that recognizes the reality, which is that the FEC assesses "penalties," and well over 95% of cases end at the FEC. The FEC is a quasi judicial agency, and when it decides a case, it decides the case. The fact that the vote is 3-3 rather than 6-0 is as irrelevant for determining the effect of the decision as is the fact that a Supreme Court vote is 5-4 rather than 9-0.
Reformers have always liked the "deadlock" language because it suggests an indecisive result. Reformers have an incentive to portray the Commission as indecisive because it helps keep foundation grants flowing and provides an excuse for the fact that the law rarely seems to be what the self-proclaimed reform community keeps telling the press that it is. Yet what reformers complain of is not indecision at the FEC – quite the opposite, their complaint is not that the Commission’s actions are indecisive when it votes 3-3 in enforcement action, but that a 3-3 vote yields a decisive result. It’s just that it’s a decisive vote with which the so-called reform community disagrees. In the past reformers have recommended that a 3-3 vote, rather than end an investigation, should mean that the investigation goes forward. There may be arguments for that, just as there might be arguments for holding that House vote of 217-217 means a bill passes. But the fact that the argument is made demonstrates that it is not the vote tally, but the action, with which the complainants disagree. The "reform" community understands that a 3-3 vote is decisive and has meaning – they just don’t like the meaning it has.
In any case, the bottom line is this – when the Commission votes 3-3 (or 2-4, or 1-5, or 0-6, or 0-5, or 1-4, or 2-3, or 0-4, or 1-3) to find that given actions do not constitute a violation of the law, it has decided that those actions do not violate the law. In enforcement, a "deadlocked" vote is a decisive vote, that clarifies the law.
Update: Bob Bauer continues the discussion here. We don’t really disagree with what he writes, except that we think he continues to confuse the issue as being one of "deadlocks" as opposed merely to "votes." Bauer suggests that, "Brad’s points are well taken. It is not clear that they address the questions about the meaning of deadlock now, on this Commission." He suggests that there is a battle going on over enforcement philosophy, and the very mission of the FEC. We don’t really disagree.
But this battle would be the same if the votes were coming down 4-2 as it is with them coming down 3-3. It is important to separate this battle over substantive vision from concern over agency structure and a phony concern about vote tallies if we are to really understand the issue Bob wants to understand. To the "reform" community, there can never be a legitimate battle over the meaning of the law or the mission of the Agency. It is always a battle of good vs. evil, those who valiantly fight for "reform" vs. those who "refuse to enforce the law." And as a majority of Commissioners over the years, from both parties, have apparently "refused to enforce the law," the "reform" community argues that this calls for a new Commission, established under rules that will guarantee that the views of the "reform" community win out, whether or not they are correct or even legitimate interpretations of the law. The Community cannot concede that there could be legitimacy to how so many commissioners of different parties and diverse backgrounds have read the law for over three decades. This therefore requires a constant vilification of the integrity of Commissioners and of the structure of the Commission. The "reformers" want to confuse substance with procedure in order to avoid a fight over the true meaning and consequences of the law, and what it has done to democratic discourse over the past 33 years. We suspect that this is because this is a fight they are ill-equipped to take on – mainly because, having been the only team on the field for most of the FECA’s history, they have little practice in playing against live opponents.
If we were to take Bob’s post and change "deadlock" to "vote" whereever it appears, his post on the FEC’s mission, and controversy and uncertainty over that mission, would have the same force. That the FEC’s new course is largely coming on 3-3 votes merely shows that the division is close – even closer than a bunch of 4-2 votes – not that the decisions themselves are not clear or do not provide clear guidance. It demonstrates that a change of just one commissioner – as with a change of just one Supreme Court Justice – might substantially change the course of campaign finance regulation over the next several years. This is exactly what the "reform" community seeks to obscure by focusing on the idea of "deadlocks" as procedural cover for substantive change. It is much better to have the substantive debate on its own merits, not disguised as concern over the vote tally.
