A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it? But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form. Potential recusal is part, not all, of the problematic course that this initiative could take. The Commissioners wish to have the Commission “clarify” two issues they claim to have been thrown into some doubt by Citizens United. They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures. A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.
If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.
In the case of foreign nationals, the rules prohibit foreign nationals from participating in or directing decision-making about expenditures, and it is not entirely clear from the face of the petition what Ms. Ravel and Ms. Weintraub now would like the Commission to do. It might be their view that foreign- owned and controlled US subsidiaries cannot make expenditures at all, a step that the Commission could not take as an administrative matter without controversy (and litigation). If what they seek is short of that—such as a “clarifying” revision to the rule barring foreign national control, participation or direction—they don’t say how the current rule is lacking or how they would remedy it.