Guest post by Steve Gold, General Counsel at ActBlue
Tie votes split 3-3 along party lines* have become par for the course at the Federal Election Comission (FEC), which requires a four vote majority to take any action. In the latest deadlock, the FEC failed to take up the task of making rules to comply with last year's Supreme Court decision in Citizens United v. FEC. The result has been increasing uncertainty about campaign finance rules, as well as a Wild West environment where Sean Hannity is permitted to use his position as host of a radio program (paid for by Clear Channel Communications) to openly solicit contributions (.pdf) for a Republican candidate.
Following the Citizens United decision that struck down several campaign finance regulations related to corporate speech, the FEC needed to officially remove these regulations from the books through a formal rulemaking process. They attempted to begin that process late last month.
The Democratic commissioners offered a proposal (.pdf) suggesting that the public be allowed to weigh in on whether the FEC should also implement new regulations to fill in the gaps created by the Supreme Court's decision that corporations could run political ads. Should the public have a say as to whether current disclosure rules require something more than disclaimers like, "Paid for by Americans for Mom and Apple Pie" on political ads run by shell entities created by corporate interests? The Republican commissioners said no, accusing the Democratic commissioners of holding the process of eliminating the defunct regulations hostage to their quest for more regulation of speech.
Who is at fault? Observers of the FEC have long argued that the Republican commissioners are stonewalling any effort at enforcing the law. Republican commissioners and their supporters have begun firing back, saying that everyone agrees these old regulations must be taken off the books, and if the Democratic commissioners would leave it at that there would be no deadlock. After the old regulations are struck from the books, Republicans say the new regulations sought by the Democratic comissioners could be taken up in a separate rulemaking process.
It's an insincere position for many reasons, not the least of which is the Republican commissioners' deeply-held belief that there should be no such additional regulation; one GOP commissioner was quoted as saying, "The last thing we need is even more regulation." Even if the newly sought regulations were included in a separate rulemaking process, the Republican commissioners have signaled they would again vote as a bloc to prevent the process from going forward. The Republican commissioners are hiding behind their anti-regulatory ideology as an excuse to deny the public an opportunity to exercise their First Amendment rights.
There is no harm in leaving the old regulations on the books. Eventually, the regulations need to be taken off of the books, but that's merely a housekeeping matter. When the Supreme Court overruled the regulations in question the FEC immediately (a year ago now) issued a statement saying it would not seek to enforce them, a position that they have abided by. The feigned urgency of removing these regulations is a symbol of the Republican commissioners' desire to deregulate our political system and nothing more; as the same GOP commissioner put it, this is a rare opportunity to shrink the Code of Federal Regulations, as though the existence of a regulation is reason enough to abolish it. In contrast, the Republican commissioners' vote to block necessary new regulations comes with a substantial cost: it leaves corporations free to game the system of existing disclosure requirements in order to clandestinely impact our elections. We saw Target attempt to do so in Minnesota last year, and other corporations that we haven't found out about yet (and maybe never will) surely did the same.
Disclosure is the lifeblood of our campaign finance laws. There is a clear need to adjust the campaign finance disclosure regime in response to the introduction of corporations into the campaign finance business, courtesy of the Supreme Court. The FEC, with three Republican commissioners dead set against any new regulation, appears unable to meet this challenge. What to do about their inability to act will be the topic of a panel I am planning to moderate entitled, "The FEC: Friend or Foe?" at this year's Netroots Nation convention June 16-19 in Minneapolis. A group of experts and practitioners before the FEC will discuss what's causing the deadlock and how to address it. If you'll be at Netroots Nation, keep an eye out for the panel; and if you aren't yet planning to attend, hopefully I've convinced you to stop by and find out the rest of the story.
*By law, the FEC is composed of three Democratic commissioners and three Republican commissioners.