Critics of campaign finance enforcement, or the lack of it, continue to be infuriated by the FEC’s record of deadlocks in major cases, and they are further troubled by the obstacles to judicial review. When complainants stymied by deadlock appeal to the courts, they must still overcome the “deference” generally granted to the agency’s expertise, except where the law is clear or the agency is acting arbitrarily. In these cases, the courts review the agency’s action by examining the stated position of the Commissioners voting against enforcement. This is the so-called “controlling group” of Commissioners—the ones whose refusal to authorize enforcement controlled the outcome. Two FEC Commissioners, Ann Ravel and Ellen Weintraub, now argue that this is all wrong, and have called for the courts to reconsider the process by which deadlock decisions are reviewed. They want an end to the “controlling group” analysis; the courts, the Commissioners contend, should review deadlocks on a de novo basis. So if the FEC dismisses a complaint because the Commissioners cannot agree on what sort of an organization constitutes a regulated “political committee,” the court would take it from there—disregarding the Commissioners’ disagreement and proceeding to judge the issue from scratch.
Commissioners Weintraub and Ravel dispute that agency expertise is relevant to judicial review of deadlocks. Deadlock is inaction, the result of disagreement among the experts. In other words, the deadlocked agency has rendered no expert judgment; the Court has nothing to which to defer. Worse, the Commissioners argue, the effect of deference on the basis of the controlling group’s position is to reward partisan or ideological obstructionism. All in all, complainants entitled by law to judicial review are put at a grave disadvantage by the doctrine of “deference” applied to deadlocks.
In the progressive critiques of the current state of campaign finance, the view of the role of the courts is inconsistent. These Commissioners want more intervention by the courts, while at about the same time, Rick Hasen believes that keeping cases away from the Roberts Court should be the overriding reform objective. We like the courts when the courts happen to be ones we like—as is seen also on the other side of the debate, in the new-found enthusiasm for “judicial activism.”
Full Article: FEC Deadlocks and the Role of the Courts –.