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August 30, 2014

Rules of the Game: Lame-Duck FEC Invites Scofflaws

Already short one officer, the Federal Election Commission will soon have a dubious distinction: As of April 30, all five of its remaining commissioners will be serving expired terms.

By now President Barack Obama’s failure to fully staff the dysfunctional agency barely even riles government watchdogs. In theory composed of three Republicans and three Democrats, the FEC has been deadlocked for so long that, some argue, the agency could hardly grind to more of a halt.

But the FEC’s growing backlog of work, protracted stalemates and failure to enforce or even explain the rules is taking a toll. At a minimum, political players are increasingly confused about how to reconcile already-complicated election laws with the Supreme Court’s 2010 ruling to deregulate political spending. (The FEC has yet to issue regulations interpreting that ruling.)

At worst, the FEC’s failure to act on even the most blatant violations is sending an “anything goes” signal to political players, who are becoming increasingly brazen about testing what’s allowed. True, most candidates, elected officials and donors simply want to understand the rules and follow them. But a growing number, election lawyers say, see their competitors pushing the envelope and are tempted to follow suit.

“It’s not surprising that a lack of enforcement and clarity is going to lead to people disregarding the law, and that’s what we have,” said Larry Noble, president and CEO of Americans for Campaign Reform. Formerly the FEC’s general counsel, Noble practiced political law at Skadden, Arps, Slate, Meagher and Flom before taking the helm of the pro-public financing group last year.

The latest example of an FEC stalemate that potentially erodes commission regulations involved a complaint over a robocall in North Carolina’s 10th District race last year, targeting GOP Rep. Patrick T. McHenry. At issue was whether the anonymous call should have included a disclaimer identifying its sponsor.

FEC Chairwoman Ellen Weintraub, a Democrat, argued that under FEC rules the call amounted to a campaign message because it referenced the election, asked why McHenry should be sent “back to Washington” and branded him as “not one of us.” FEC regulations say the rules cover trigger words such as “vote for” and “vote against” as well as messages that in context use phrases that “can have no other reasonable meaning” than to urge a candidate’s election or defeat.

But the FEC sat on the McHenry complaint for six months; it ultimately stalemated and took no action. Now limping along with five members since Democrat Cynthia Bauerly’s departure in January, the FEC must cough up at least four votes in order to act. A frustrated Weintraub put out a “Statement of Reasons,” arguing that the case presented “a clear example of express advocacy” and that “there was no excuse for protracted delay.”

“I’m concerned about the pace of enforcement,” Weintraub said in an interview. “I’m concerned about how we are going to get our work done if it takes six months to resolve a simple case like this.” The FEC now faces “a very large” backlog of more than 60 pending matters, she added, partly because once-routine negotiations have become so contentious.

“Now pretty much everything has to go to the table,” said Weintraub, whose term expired six years ago. “Everything gets objected to. Everything requires a lengthy discussion at the table.”

Some conservatives argue that the agency should just be shut down. At the recent Conservative Political Action Conference held near Washington, D.C., a panel of three GOP attorneys argued that the agency has “greatly overreached” its regulatory authority, according to a writeup by the Center for Public Integrity.

On the flip side, campaign finance watchdogs charge that the FEC has failed to enforce both the election laws and its own regulations. Citizens for Responsibility and Ethics in Washington notched a small legal victory over the FEC last week, when a federal appeals court agreed that the agency had violated the Freedom of Information Act by refusing to respond in time to a CREW request.

“There’s no incentive to file accurate campaign finance reports because no one’s going to do anything about it,” CREW Executive Director Melanie Sloan said. “The incentive is, in fact, to break the law — or at least come really, really close.”

For many election lawyers, the FEC is less a scapegoat than one of many players in a campaign finance game that has become impossibly complicated. Laws have been rewritten and knocked down — leaving many scratching their heads over just what the rules are.

“It’s very easy to point to individual commissioners and say, ‘They are being heavy handed,’ or, ‘They are unwilling to enforce the laws,’ ” said Marc Elias, chair of the political law practice at Perkins Coie. “I do think we need to acknowledge that there are some very, very difficult and thorny questions as to what pieces of the law are enforceable, and in what circumstances, after a series of court decisions that radically reordered and changed the campaign finance system.”

Still, the longer Obama delays nominating new commissioners, the more political players will be tempted to take the election laws into their own hands.

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