Why Participation at the Federal Election Commission Matters, Despite the Agency's Dysfunction (The Huffington Post)

J. Gerald Hebert
Dec 17, 2014
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We are sometimes asked why the Campaign Legal Center even bothers dealing with the Federal Election Commission (FEC) anymore -- except to sue it for undermining the letter and the spirit of the laws passed by Congress (back when Congress passed campaign finance laws). For an answer, one need look no further than Judge Amy Berman Jackson's recent important decision in Van Hollen v. FEC, striking down the FEC's electioneering communication disclosure rules that have exacerbated the abuse of "dark money" in our elections.

This quote from Judge Jackson's decision says a lot about our work.

"The agency received only one letter responding to the change in the reporting requirements, and in it, J. Gerald Hebert and Paul Ryan of the Campaign Legal Center expressed their strong objection. AR 1024-26 ('We believe it would be a mistake of historic proportions for the Commission to go beyond the text of the controlling opinion in WRTL.')."

The FEC is mired in partisan gridlock and has a history of ignoring the intent of legislators in order to undermine the campaign finance laws passed by Congress. Driven away by the agency's dysfunction, very few groups bother to submit comments or testify before the FEC anymore unless they are seeking something for deep-pocketed clients or doing the dirty work of donors who want to keep their "dark money" spending a secret. It is important, however, for those concerned about the role that big money plays in our democracy and our elections to continue to work within the system as it stands. It is important to do so even if, as we hope, the agency is ultimately replaced by another body not hamstrung by partisan commissioners.

In her strongly worded opinion in the Van Hollen case, Judge Jackson ruled that the FEC's electioneering communication disclosure regulation was "arbitrary, capricious, and contrary to law and that the regulation is an unreasonable interpretation" of the law passed by Congress.

A majority of FEC commissioners may have ignored Campaign Legal Center's Senior Counsel Paul S. Ryan's testimony at the rulemaking hearing, but Judge Jackson clearly did not, noting:

"Ryan pointed out that while there were several commenters who proposed exempting WRTL II ads from the BCRA disclosure requirements, there was a large group of commenters, who came from groups with varying perspectives on campaign finance disclosure, who would all agree 'that the plaintiff in WRTL did not challenge the disclosure requirements, the WRTL court did not address the constitutionality of the disclosure requirements, and the McConnell court by a large majority specifically upheld the constitutionality of these disclosure requirements.'"

Additionally, Judge Jackson's decision emphasized that the bait-and-switch procedural history of the rulemaking helped sink the FEC's case before the court:

"This review of the procedural history tends to diminish the validity of the regulation ... because it demonstrates that the Commission's action was unmoored from the stated basis for embarking on a rulemaking in the first place."

The petition for rulemaking did not ask the agency to address disclosure; nor did the FEC seek comments on this issue. Commenters, therefore, did not address disclosure in their submissions. It was only after the notice and comment period and a two-day hearing that the Commission decided to amend the electioneering communication disclosure rule.

Appearing before the FEC and offering testimony, even when some of its commissioners are determined to undermine the campaign finance laws Congress enacted, might look to some like an exercise in futility. But Judge Jackson's decision underscores why we should not simply cede the field to a handful of well-funded special interests before the FEC or anywhere else.

J. Gerald Hebert is the Executive Director and Director of Litigation at the Campaign Legal Center. This opinion piece originally appeared in the Huffington Post on December 17, 2014. To view it there, click here.

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