J. Gerald Hebert, Executive Director of the Campaign Legal Center (CLC), is out dissembling in the Politico this morning. Hebert tells the Politico’s Ken Vogel that the FEC’s structure is, "“a system that’s built to deadlock.”
Being where he is, we presume that Hebert knows the statistics – that in fact the 6 member FEC "deadlocks" on substantive votes – that is, ends in a tie vote – somewhere between one and four percent of the time in a typical year – in most years closer to the former figure. Hebert also knows that "deadlocks," when they do occur, hardly mean that the system grinds to a halt. Rather, in most cases, a "deadlock" resolves whatever issue is up for a vote – actions require a majority to pass, so just as a 217-217 in the U.S. House of Representatives resolves the issue at hand (the measure is defeated), so, too, a 3-3 vote at the FEC resolves most issues.
Finally, use of "deadlock" language and the argument that it is caused by the "structure" of the Commission – which Mr. Vogel helpfully tells us means that the Commission is bipartisan in its makeup, with 3 Democrats and 3 Republicans – suggests that "deadlocks" occur on partisan grounds. As we are sure Mr. Hebert’s boss – former Commissioner and CLC Chairman Trevor Potter – could tell him, partisanship is not usually the grounds for such deadlocks as exist. (It occurs to me that I am going out on a limb, here – it could be that when Mr. Potter was on the Commission from 1991-95, he and his colleagues were much more partisan in deciding issues than during my tenure from 2000-2005. Maybe a reporter should ask some questions – "Mr. Hebert, do you believe that Trevor Potter decided cases on the basis of partisanship while at the FEC? Has he ever indicated to you that his colleagues did? If so, which colleagues? If this is a question of individual commissioners placing partisanship ahead of the law, then can you truly say that the ‘structure’ of the Commission leads to ‘deadlock?’ So long as even one Commissioner is not partisan, isn’t it true that "deadlock" won’t be a problem?") In fact, those few deadlocks that occur usually occur because of honest disagreements among Commissioners over the law; they do not always follow partisan lines and even when they do, that is usually less due to partisanship than differing view of the law – for example, it is not uncommon for the Commission’s Democratic members to favor an approach potentially harmful to a Democratic or Democratic-allied entity, while Republicans propose an approach that would favor that entity.
Meantime, it is hard to fathom why a presumably knowledgeable observer such as Mr. Hebert would continue to foster a belief in the "deadlock" theory, something that virtually all who follow the FEC closely know is not true, and for which statistics proving it is not true are readily available.
Unfortunately, many reporters, such as Mr. Vogel, rely on groups such as CLC as sources for stories on the FEC. Once again, it is no wonder that the more you read the papers, the less you know about campaign finance.
