Four Years Later, FEC May Finally Update Its Books With Citizens United Ruling

A bipartisan group of federal election commissioners is quietly inching toward new rules after years of hitting dead ends.

A poll worker prepares voting booths at a polling station in Los Angeles on May 21, 2013. Los Angeles City Controller Wendy Greuel and Councilman Eric Garcetti are vying to replace Antonio Villaraigosa as the next mayor of Los Angeles. 
National Journal
Shane Goldmacher
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Shane Goldmacher
June 8, 2014, 6:30 a.m.

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.”

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