After almost 18 months of discussions, memorandums and regulatory debates, the Federal Election Commission failed Wednesday to begin its process for updating regulations in light of the Supreme Court’s 2010 decision in Citizens United.
The commission’s agenda included drawing up a set of questions to frame future discussions about bringing regulations in line with the ruling, which found that corporations, unions and nonprofits may spend their own funds on political ads. It was only the second time this year that the commission tried to tackle the project, and frustrated commissioners were unable to reach an agreement.
It’s unknown when the commissioners may try again, and campaign finance experts say the deadlock means that millions of dollars could be raised and spent on the 2012 cycle under outdated regulations.
“The result is really unconscionable,” said campaign finance lawyer James Bopp Jr., who initiated the Citizens United v. FEC case. “There will be a huge number of people that will comply with illegal and unconstitutional regulations that should be repealed.”
After the Citizens United ruling, the FEC published a policy statement that said it would not enforce regulations struck down by the Supreme Court. But Bopp cautioned that treasurers for political action committees may find the situation ambiguous.
Commissioners also tried to come up with a list of questions in January, but the issue was tabled after Democratic and Republican commissioners could not reach an agreement.
“We’re really in the same place we were in January, which is that the Supreme Court issued a landmark decision nearly a year and a half ago to find much of the law unconstitutional,” Republican Commissioner Caroline Hunter said Wednesday. “And obviously we want to remove those regulations from the books, and they are still there. I don’t see how the agency can defend keeping those regulations on the books for this long.”
One key area of dispute is disclosure. Republicans argued that the Supreme Court’s decision did not ask for more disclosure and that the issue should not be addressed in the rule-making or commenting period. But Democrats say the commission could benefit from outsiders’ opinions on broader topics like disclosure.
“I think we have come a lot closer, and I haven’t given up yet,” Democratic Commissioner Ellen Weintraub said about drafting the questions. “We took a lot of stuff out of our draft — issues we wanted to raise and questions we wanted to ask. ... Work with me, come on.”
Debate between Democrats and Republicans became contentious before both parties’ drafts failed in split votes of 3-3.
“This is ridiculous,” Republican Commissioner Donald McGahn said. “Come on, we got to get this stuff moving. ... My concern is that if you add the disclosure piece to what really needs to happen, it’s going to bog the whole thing down.”
Weintraub replied, “We disagree on how to comply with the court, and that is what the rule-making process is for. And there is not only one way — the way that Don McGahn says is the only way. That is not the only way of the world.”