Supporters of extensive campaign finance regulation insist that the Federal Election Commission (FEC) is a broken government agency. The agency’s current chair Ann Ravel, a Democrat appointee, claims that the Republican commissioners refuse to “enforce the law.” A majority vote of four out of six of the agency’s commissioners (three Republicans and three Democrats, including Chair Ravel) is required for the agency to take action in many instances. In some controversial areas of the law, such as alleged coordination between candidates for federal office and “super PACs” (groups that can raise and spend unlimited amounts of money on advertisements and other activities supporting or opposing candidates for federal office), there have indeed been some 3-3 votes, split between the three Republican and three Democrat commissioners. These instances are used to support a narrative that the FEC is not only broken, but in a partisan gridlock. The truth is, the regulations that the Republican commissioners “don’t want to enforce” are open to interpretation, and reformers have no one to blame but themselves that they are not being interpreted to their liking.
Marc Elias, a prominent campaign finance attorney who represents Democratic candidates and organizations, recently submitted an emergency advisory opinion request (“AOR”) to the FEC. The AOR, submitted on behalf of two Democratic super PACs, asks the agency twelve questions, seeking guidance on whether the PACs can undertake certain activities with candidates and would-be candidates. Although super PACs can raise and spend unlimited amounts of money, they must remain legally independent of federal candidates, who are still subject to contribution limitations and thus cannot run a super PAC on the side. The coordination regulations are among the FEC’s most precise. They were last revised in 2010, after nearly a decade of rulemaking-and-litigation with Congressman Chris Shays, who sued (and won) numerous decisions that the regulations did not comply with the Bipartisan Campaign Reform Act (more commonly known as McCain-Feingold).
But coordination is just one part of the AOR. As Elias makes clear, much of the “coordination” activity at issue today does not actually rest on the coordination regulations, which are fairly spelled out, but on regulations that govern when a would-be federal candidate becomes a federal candidate, who is then subject to the coordination regulations. These other regulations are not precise; quite the contrary.
The AOR is 19 pages single-spaced, so this is not an exhaustive summary or analysis (the entire document is well worth reading), but there are some important qualifications within the request. These include the following:
- “The FEC has never taken a clear position on the length of time a potential candidate may permissibly conduct exploratory activities without triggering candidacy.” (Emphasis added.)
- “The FEC has not specified a particular level of funding that triggers candidacy, nor has the FEC addressed whether candidacy can be triggered when a prospective candidate solicits these funds for a Super PAC rather than for his or her own exploratory or campaign committee.” (Emphasis added.)
Equally important to the AOR’s acknowledgements of murkiness is the clarity that Elias seeks. For example, Elias wants to know if certain “cooling off” time frames apply to super PACs formed before a candidate declares candidacy. He wants a specific time frame for a candidate’s “testing the waters” activity—perhaps six months, nine months, or a year. He would like to know whether there is a fundraising threshold that triggers candidacy if a would-be candidate raises money for a super PAC before declaring —perhaps $1 million, $5 million, or $100 million. He would like to know if candidates can attend small events held by super PACs. Such specificity would be welcome, and one might think it would answer many reformers’ complaints. But even leaving aside the procedural concerns (such specific law is best born in Congress, or at least in an FEC rulemaking instead of an advisory opinion), specificity is actually anathema to campaign finance reform.
Super PACs are indeed a new type of organization, but this does not account for the FEC’s coy approach to when a would-be candidate becomes a candidate and many other regulated activities. Elias’s AOR describes a “nonexhaustive” 5-part list of when a candidate might become a candidate, drawn in part from past agency enforcement actions and advisory opinions. Such wide-open regulation is little more than business-as-usual at the FEC, where everything from determining the content of an organization’s speech to the very purpose of an organization are fact-intensive, case-by-case analyses in which elements of the law have a way of changing to fit the facts. The result, of course, is a wholly unpredictable set of regulations that leave candidates along with groups large and small under a hazy cloud with questions that even top campaign attorneys like Marc Elias cannot readily answer.
Reformers once enjoyed this arrangement, because if the law actually prohibited everything they want it to prohibit it would be subjected to a successful constitutional challenge; murkiness and fear of FEC enforcement amidst the hustle-and-bustle of campaign season used to be a worthy alternative to unequivocal regulation. But that’s no longer the case, because the current Republican commissioners (and certain other commissioners who are no longer serving) have resisted case-by-case rulemaking, or adding new elements to numerous nonexhaustive arbitrary checklists. FEC commissioners used to reliably interpret vague and ovverbroad regulations in favor of regulating activity; now three of them interpret it to broadly allow activity. The righteous indignation of Chair Ravel and one of her fellow commissioners Ellen Weintraub notwithstanding, the fact that such vague and overbroad regulations are being interpreted this way is but the other side of a creation they and other reformers have long supported.
It is a very rare occurrence that vague and overbroad laws turn this way—to allow activity rather than prohibit it—and this makes them no less constitutionally questionable, but it is a welcome development. Campaigns and super PACs alike can focus on campaigning instead of compliance, a big plus to our democracy. There may be room for new regulations in many areas of the federal campaign finance regime, including more specific guidance on coordination and candidacy. Elias, for his part, dispels at least part of the “partisan” meme by lending support from the Democratic side for stable, predictable regulation. But Chairwoman Ravel and Commissioner Weintraub proved months ago they have nothing serious in mind for such action. They, and much of the reform community, simply want the tables to turn back, where vague and overbroad regulations give them authority to regulate, prohibit and punish political activity that’s not up to their standards.