Having made good on its promise to throw out its old rule book in the wake of the Supreme Court's decision to free up corporate and union political spending, the Federal Election Commission has riled critics who have revived calls to completely overhaul the commission.
The FEC faces one lawsuit from a Washington watchdog group and may soon field another. Reform advocates complain that a string of FEC rulemakings have weakened the campaign finance laws on several fronts. At the same time, the commission has taken no action on a long list of investigations and complaints, often due to partisan deadlocks. (The commission, which is divided 3-3 between Republicans and Democrats, may not act without a majority.)
The latest FEC controversy involves the commission's long-awaited rulemaking to define what constitutes truly independent campaign activity -- that is, political spending that is not coordinated with a party or candidate. These coordinated communications rules, as they are known, have fueled a long-running legal battle between the FEC and reform advocates on Capitol Hill. The FEC has repeatedly issued coordination rules, only to see them tossed out in court.
On the heels ofCitizens United, the FEC is playing an arguably outsized role in setting the political rules of the road.
The commission's latest rules, approved 5-1 in late August, may lead to yet another legal challenge. At issue is how closely outside political players may confer with candidates when they run purportedly independent political ads.
It's an urgent question in the wake of the Supreme Court's January Citizens United v. FEC ruling. That's because the high court freed up only independent corporate and union political spending. Direct corporate and union contributions to candidates remain potentially corrupting and illegal, the court held. If a corporation or union confers too closely with a candidate before running an election ad, therefore, that ad could amount to an illegal campaign contribution.
The FEC's revised rules say the ban on coordination extends not just to so-called express advocacy -- that is, ads that include calls to vote for or against a candidate -- but to its "functional equivalent." As defined by the Supreme Court in FEC v. Wisconsin Right to Life, that means ads "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Some election lawyers and FEC watchers say the new FEC rules make sense, since it's tricky to curb coordination without squelching advocacy groups' First Amendment right to run issue ads.
Groups as diverse as the AFL-CIO and the Alliance for Justice supported the FEC's approach in comments before the ruling, noted Jeff Patch, communications director of the Center for Competitive Politics, in a blog posting. FEC commissioner Ellen Weintraub, a Democrat, said the coordination ruling was a compromise between commissioners who were strongly at odds over its language.
"I had several colleagues who thought it was too broad in its scope, and others who thought it was too narrow," Weintraub said.
But reform advocates remain dissatisfied. The new rules amount to "a license for members of Congress or other candidates to write the ads and have corporations pay for them," said Fred Wertheimer, president of Democracy 21. Wertheimer and other reform advocates had lobbied the FEC to apply the coordination rules more broadly, to any ads that "promote, attack, support or oppose" a candidate -- the so-called PASO standard. In a written dissent, FEC commissioner Steven Walther argued the same point.
Asked whether reform advocates would take the FEC to court yet again, Wertheimer said: "We're looking at all our options."
The commission already faces a lawsuit filed last month by Citizens for Responsibility and Ethics in Washington. CREW is seeking an injunction from the U.S. District Court for the District of Columbia to force the FEC to provide more timely explanations of why it dismisses certain complaints.
Technically, the law gives complainants 60 days to challenge an FEC dismissal in federal court, and to ask for judicial review. But the commission has repeatedly dismissed CREW's complaints without offering any explanation, the suit alleges, or released explanations long after the 60-day window -- making it virtually impossible to seek legal redress.
"We think that part of what they're trying to do is prevent complainants like us from filing lawsuits," said Anne Weismann, chief counsel at CREW. Activists at CREW, Democracy 21 and other pro-reform advocacy groups argue that the three GOP commissioners at the FEC, in particular, are systematically dismantling campaign finance rules and should be replaced. Several lame-duck commissioners are serving on holdover status, but the appointments process has stalled.
"It's disappointing that the administration has not yet been more proactive," said Weismann. "This is another front -- the regulatory front -- that I think they should be fighting on."
On the heels of Citizens United, the FEC is playing an arguably outsized role in setting the political rules of the road. Recent FEC advisory opinions give the green light to political groups that now want to raise money directly from corporations and unions, for example, and the commission also recently explained that such groups need only publicly report donations that are specifically earmarked for their independent ads. It would be a good time, indeed, for the administration to pay some attention to who's serving on the FEC.