Two weeks ago, at the Federal Election Commission’s monthly open meeting, things got a bit heated. In a divide that falls largely between party lines—but is not, contrary to popular belief, politically partisan—Chair Ann Ravel and Commissioner Ellen Weintraub testily called for publishing a petition for rulemaking that they submitted in early June. Unable or unwilling to answer some important legal questions raised by the Republican commissioners about the merits of this tactic, including whether or not Ravel and Weintraub would have to recuse themselves if the Commission heard the petition on its merits, Weintraub simply huffed “I’m very impressed by the amount of time and effort that my colleagues put in trying to come up with a reason to vote ‘no’ on this.” Nevertheless, by throwing in some baseless Citizens United quips, Weintraub led the press coverage and all remains righteous in the campaign finance reform echo chamber.
But it was not the Republican commissioners alone who criticized Ravel and Weintraub’s petition. The remaining Democrat Commissioner, Steven Walther, did not merely question procedure but the substance of the petition. He summed his criticism up nicely: “I don’t think it’s a call for the kind of serious rulemaking that we should be doing.” He’s entirely correct, and we need look no further than the petition’s call for new coordination rules to see how unserious it really is.
The current FEC regulations regarding coordination—that is, when a group works so closely with a federal candidate that it effectively functions as part of the candidate’s campaign and is subject to all related regulations—are already extensive. The definition of “coordinated communication” is 2,632 words. This does not include the length of the numerous other regulations cross-referenced within it. Just one of those other regulations, the definition of “electioneering communication,” adds another 1,622 words. The saving grace of these definitions is that, though complex, coordination is limited in its reach, and, though lengthy, the specifics in the regulations spell out exactly how to avoid baseless accusations, investigations, and punishment for campaigning or engaging in political speech.
Such is the problem for reformers. In about one paragraph, the Ravel/Weintraub petition calls for new coordination rules, the only specifics being the following:
[T]he Commission should adopt rules that prohibit candidates from attending super PAC fundraising events. The Commission should also adopt rules that deem all spending by outside groups that effectively operate as “the alter ego of a candidate” as coordinated spending. Finally, the Commission should look to the states for innovative solutions to ensure that spending by outside groups looking to influence elections is truly independent.
(Footnotes omitted.) The first proposal has overbreadth problems, and instead of preventing coordination aims to redefine it entirely. Assuming Ravel and Weintraub would limit this prohibition to a super PAC that actually supports said candidate (or, as Richard Briffault, cited favorably in the above quotation, suggests, “a very small number of candidates”), it still does not explain how a candidate coordinates with a PAC absent material involvement in what the PAC does with the money it raises. One of the principal justifications for coordination rules is that with too much input a candidate has control over outside spending, thus it is not independent and in fact an in-kind contribution to the candidate. The only justification for this proposed regulation is that a candidate will be grateful for what the super PAC does independently with the money he raises for it, a rationale that falls apart in light of the recent Supreme Court cases Citizens United and McCutcheon. (Even so, the Federal Election Campaign Act already prohibits candidates from soliciting more than $5,000 even for super PACs, and in a 2011 advisory opinion all six FEC commissioners affirmed this.) This newproposed prohibition would likely not withstand scrutiny, for it is not tailored to prevent coordination, but absent a new, all-expansive definition it would prevent activity that might lead to coordination, which is one step too far removed.
As the second sentence suggests, via citation to Briffault’s paper, an “alter ego” super PAC is to be defined simply by suspicious association as well. The specifics of this proposal are even worse than the first. Briffault goes so far as to suggest that a PAC coordinates with a campaign when it “is staffed by individuals who used to work for the candidate, the candidate’s campaign committee, or a political party in the current or past election cycle.” This would be another preemptive measure that does not gauge what a super PAC does, but what some of its employees have done in the past. It serves little more than to sideline experienced campaign staff, the very people who would best serve in an independent operation. Surely, Commissioner Weintraub would acknowledge that former campaign staffers are persons, not drones, and thus capable of acting independently despite their prior associations. They should not be prohibited from doing so.
Finally, instead of revealing which of the 50 states they would look to for an “innovative solution” to coordination, Ravel and Weintraub cite to a report last year from the Brennan Center. Reviewing this report, the authors consider California, Connecticut, Maine and Minnesota to be states with “strong regulation” of coordination. Having reviewed California and Connecticut’s laws, in particular, I agree their laws are indeed strong, albeit vague and overbroad. They will likely face constitutional challenge sooner rather than later. Whether these challenges are successful or not (Connecticut’s was challenged last year by the Democratic Governors Association, but the challenge was dismissed for lack of standing), the laws will have serious free speech problems. Absent specificity, these states’ laws are open doors to Wisconsin-style inquisitions, actions that should have been prevented already by precedent such as the (seldom-mentioned) case FEC v. Christian Coalition.
The populism that Weintraub and Ravel bring along with their petition, arguing that the Commission should publish the petition if only to take public comment from average Americans on coordination, does not excuse the their lack of substance. Even acknowledging Weintraub and Ravel’s strange affinity for “the people” ahead of Congress, the law, and the Constitution—all of which have ties to the people that are at least as strong as unelected bureaucrats—I would think the commissioners are responsible even by their own paradigm to propose clear regulation. That is, I agree the FEC should hear public comment, but only on actual proposed regulations, not the mere idea of them. Even if, by Ravel’s own words, the FEC is “worse than dysfunctional,” this is only exacerbated by unserious proposals like this petition, which do nothing more than ask—again, quoting Commissioner Walther—“an amorphous question [that will] get nothing more than an amorphous answer.”