With less than a month before the agency could be completely recast, the Federal Election Commission is getting mixed reviews from both inside and outside its E Street outpost. There is praise for catching up on its caseload after shutting down last year for six months but criticism about a deepening split within the six-person commission.
The number of deadlocks is growing and there are apparently deep differences in their approaches to the law and their views of the proper role of the commission in enforcement, Larry Norton, a former top lawyer at the agency now in private practice at Womble Carlyle Sandridge & Rice, wrote in an e-mail last Friday.
By the end of April, half of the six commissioners terms will have ended, creating an opening for the new White House to repopulate the agency to its liking.
GOP-nominated commissioner Don McGahn and current Democratic-picked chairman Steven Walthers terms expire on April 30; Ellen Weintraub, a Democrat, has been waiting to be replaced since her term expired two years ago.
During the transition, President Barack Obama assigned former FEC Commissioner Bob Lenhard, a Democratic lawyer now practicing at Covington & Burling, and law professor Mark Alexander to review the agency, although a drastic redecorating does not appear afoot.
Walther, a self-described independent and close friend of Senate Majority Leader Harry Reid (D-Nev.), acknowledged that the commission has had a run of 3-to-3 decisions lately, which divided the panel on party lines and allowed the accused off on a technicality. These include high-profile enforcement cases involving the U.S. Chamber of Commerce, liberal billionaire financier George Soros and the presidential campaign of former Massachusetts Gov. Mitt Romney (R).
Weve had a couple [3-to-3 decisions] as of late, but overall I dont want to exaggerate it. Were still working our way through the fringes of the First Amendment, Walther said in an interview Thursday. Weve had a lot of compromise, but there have been times when [Republicans] have not been willing to compromise.
You could say the same thing about our side, too, he added.
Tracking the agencys split or deadlocked decisions can be a fools errand, a task so confusing that even the agencys public affairs department could not cull the information before deadline, over the course of roughly two business days last week.
According to a chart on the agencys Web site, from January 2003 to June 2007, the panel failed to arrive at a simple majority in 38 enforcement cases.
In contrast, the commissions three Republicans have dissented in at least four cases in the last three months alone nearly the same amount in all of 2006 according to a search of the agencys enforcement query system.
Still, Walther expressed optimism that compromise may be just around the corner.
Republicans, he said, vote as a bloc, but, he added, that may change over time.
McGahn, a veteran campaign finance lawyer and the de facto leader of the three GOP-nominated commissioners, also warned against taking a snapshot of the panels decisions and drawing conclusions.
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.