It's been more than four years since the Supreme Court's Citizens United ruling reshaped the campaign finance landscape, and yet the Federal Election Commission has failed to issue new regulations to take into account the landmark decision.
That could be about to change.
Behind closed doors, a bipartisan clutch of FEC commissioners are quietly moving to refresh the election regulations after years of stalemate, those familiar with the process tell National Journal. The updated rules under consideration by the commissioners are narrow in scope, mostly seeking to strip unconstitutional provisions from the books; the revisions would not include the stricter disclosure requirements that some Democrats have sought, people involved said. But the very fact that the commission is undertaking the effort at all is a significant development for an agency that has become synonymous with Washington gridlock and dysfunction.
"I do think it would be a big deal if we could get this done," said Commissioner Caroline Hunter, a Republican. "We have been trying to do this for years."
The Supreme Court's January 2010 ruling unshackled election spending by corporations and labor unions. But ever since, the FEC, made up of three Democrats and three Republicans, has been unable to find consensus on squaring its books with the Court's ruling. As a result, inaccurate and unconstitutional regulations have remained in place for parts of three election cycles, even as the FEC has pledged it won't enforce them, amounting to a bureaucratic black eye.
"It sows confusion out there for people outside the Beltway who don't have the training," said William McGinley, a GOP elections lawyer at Jones Day. "They are looking at the Federal Election Commission regulations and could think those regulations are still in effect."
Officials at the FEC attribute the fresh movement largely to the commission's two newest members—Chairman Lee Goodman, a Republican, and Vice Chairwoman Ann Ravel, a Democrat, both of whom joined the commission last fall.
"They've both done an excellent job for trying to work together and move things forward. They both deserve a lot of credit," Hunter said. She said a proposal to conform the regulations to the court decision has already been circulated to Ravel and others on the Democratic side of the commission for review. "I'm optimistic that she'll take" it, Hunter added.
Ravel declined to comment on any closed-door talks. She said only, "It's my general view that one of the roles of the commission is to provide guidance to the public about how to comply with the law."
Officials at the FEC warn that no final deal has been struck and negotiations are ongoing. Further, when the Supreme Court handed down the McCutcheon decision earlier this year, which ruled that aggregate limits on political donations were unconstitutional, it overturned even more FEC regulations that are still on the books.
Goodman, who is in the middle of a one-year term as chairman, would not characterize the state of the behind-the-scenes efforts, but said in an interview he has made repealing the overruled regulations a top priority since his arrival. "Beginning with my private law practice, I thought that the failure of the commission to be able to conform the regulations to the basic holding of Citizens United was a shame," he said, adding that "since joining the commission in October 2013, I have been testing the interest of my colleagues in conforming our regulations to the Constitution on a regular basis."
In the past, the biggest stumbling block has been how expansive a regulatory revamp to undertake after Citizens United. Republicans have pushed to simply repeal the provisions overturned by the Court. Democrats have pushed for a more holistic approach that would also include additional disclosure requirements, citing the growing influence of undisclosed donations on American elections.
Now, the commission appears poised to proceed on the path more akin to the one favored by Republicans.
Commissioner Ellen Weintraub, the leading Democratic voice for disclosure, blamed Republicans for refusing to consider anything beyond simply stripping out unconstitutional language, calling that a simple "housekeeping matter" that "doesn't provide any additional guidance to the regulated community." "I take strong exception to the notion that Democrats were an obstacle to doing a Citizens United rulemaking," she said in an interview. "We want to fully address Citizens United and all of its ramifications."
Weintraub has pushed for years, without any success, for the commission to consider stricter disclosure rules. "Disclosure," she wrote in an exasperated July 2011 public statement, " … has become like the villain in a children's novel, the topic that may not be named." Weintraub declined to discuss the current closed-door talks, calling it "premature." "Those conversations are not on the public record at this point," she said.
The other Democratic-aligned FEC commissioner, Steven Walther, did not respond to a request for comment.
If and when a deal is struck, the commission could move unusually quickly. That is because it already went through the laborious task of putting out draft regulations, holding a public hearing, and soliciting feedback from the political community back in 2011 and 2012. There are few bureaucratic barriers left to action. "It's not as if there isn't any water under the bridge here," Hunter said.
"All we have to do now," she added, "is vote on the final rule."
This article appears in the June 8, 2014 edition of NJ Daily.