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FEC Rulemakings Roil Agency, Critics | Rules of the Game

(Bill Clark/CQ Roll Call File Photo)

Is the Federal Election Commission a dysfunctional agency deaf to voters fed up with loophole-riddled campaign finance rules? Or is it a newly revived organization making unprecedented moves to invite a wide-ranging public debate over its regulations?  

The answer may be both. In a fit of productivity on Oct. 9, the FEC managed to outrage its critics, thrill political party leaders, send election lawyers scrambling and break out once again into public bickering. It was an abrupt departure from the months and even years of partisan deadlock that have rendered the FEC incapable of settling even the most routine enforcement disputes. Advocates of political money restrictions have long decried the FEC’s paralysis, but they are even more irate now that the agency has finally sprung into action. Most controversial was the FEC’s move to essentially double the maximum that donors may contribute to the Republican and Democratic National Committees. The Campaign Legal Center’s Larry Noble called it a “disgraceful and activist decision” at odds with federal law.  

Donations to the parties are capped at $32,400 a year. But the FEC freed the RNC and the DNC to raise yet another $32,400 a year each from donors who have already given the maximum, in order to help pay for their national party conventions. The conventions had been publicly financed since the 1970s, but Congress nixed public funding for the political party confabs earlier this year.  

The agency also issued new regulations to spell out the expanded freedoms that independent campaign spenders enjoy under Citizens United v. FEC, nearly five years after the Supreme Court handed down that landmark ruling. Additionally, the commission cleared interim rules to implement the high court’s April McCutcheon v. FEC ruling, which lifted aggregate campaign contribution limits. Breaking the log jam was FEC Democrat and Vice Chairwoman Ann Ravel, who joined the commission’s three Republicans to cast the decisive fourth vote.  

The moves sparked a backlash both within and outside the agency. In a statement , Democratic commissioner Ellen Weintraub faulted the Citizens United regulations for responding to the ruling “only in the narrowest possible sense,” and ignoring key disclosure questions: “Most inexplicably, despite the Supreme Court’s strong endorsement of disclosure, half the commission has blocked consideration of any proposals that would shine new light on dark money.”  

Weintraub told CQ Roll Call that the rule-making process itself departed from FEC precedent in that it left no room to debate alternatives. She objected to the commission’s decision to double the political parties’ contribution limits for convention funding, something she said only Congress has the authority to do. Campaign finance watchdogs also complained that the action is contrary to law, and invites a return to the convention-related fundraising abuses of the 1970s, which led to public funding initially.  

“We are all sympathetic to the party committees, who feel they are being out-gunned by these groups that can raise unlimited funds,” Weintraub said in an interview. “But the law has contribution limits.”  

Republican Commission Chairman Lee Goodman defended the rule-making process in an interview, noting that the FEC has been debating post-Citizens United disclosure questions for close to five years.  He called the party convention ruling “a reasonable interpretation of statute” that he said is justified on the grounds that the convention committees are stand-alone entities made up of state delegates, and may therefore face their own contribution limits.  

“I come from a background of over a decade in the political party,” said Goodman, a former general counsel of the Virginia GOP who has advised four Republican presidential campaigns. “I believe in the parties. I believe they are constructive in the process. I think we need to return more role and effectiveness to the parties.”  

Obscured in the tit for tat was perhaps the commission’s most important action last week, which was to invite public comment on how it should revise its rules governing earmarked campaign contributions, joint fundraising and public disclosure in light of the McCutcheon ruling. The FEC “is now asking the public what rules it should consider implementing to address corruption in the political process,” wrote Democratic commissioners Ravel, Weintraub and Steven Walther in a statement .  

The invitation for public comment, formally known as an advanced notice of proposed rulemaking, paves the way for a wide-ranging public hearing on Feb. 11. In the meantime, Ravel has set out on a cross-country listening tour, starting in Atlanta and Chicago, to invite input from average voters. Weintraub, too, will be inviting comment outside the Beltway, starting in Raleigh Durham, N.C.  

Predictably, even this overture has riled critics of the much-maligned FEC. The Campaign Legal Center’s Noble said in a statement following last week’s actions: “Perhaps the Vice Chair should have done her public listening tour before ripping up federal law because I don’t think the public is going to tell her that it wants to give wealthy donors additional avenues to buy still more influence in Washington.”  

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