Anyone can pick out a handful of enforcement matters, ignore everything else, and say theyre deadlocking and theyre taking the hard line. But what is true is that were not going to use the enforcement process to generate test cases on certain issues which have always caused division, even at the Supreme Court which appears to be on its best day currently 5-4, he wrote in an e-mail.
You cant horse trade on the First Amendment after the Supreme Court draws the line for you, he added.
Larry Noble, who like Norton was once an FEC general counsel, said tie votes have been an issue at the agency since day one and, in fact, lawmakers wrote the rules for just these types of outcomes.
Noble, now in private practice at Skadden, Arps, Slate, Meagher & Flom, also agreed with Walther and other observers that the culprit may lie not entirely with partisanship, but with inexperience: The agency has three green commissioners, former Hill staffers Matthew Petersen and Cynthia Bauerly and former George W. Bush administration official Caroline Hunter.
New members at this agency always lead to basically a period of adjustment and shakeout, said Jan Baran, a Republican campaign finance lawyer. I suspect the last six months are no different than six-month periods in the past where theres been a significant change in the composition of the agency.