Public Citizen has concluded that the Federal Election Commission is failing. Its shortcomings are “dramatic and uncharacteristic”, because they range across the entire field of their responsibilities in conducting audits; enforcing the law through investigations, settlements and lawsuits; and issuing regulations and advisory opinions. The Public Citizen analysis is statistical and focuses on vote deadlocks. The FEC is indeed disagreeing a great deal—about that, there is no doubt. But is the agency failing or is the old regulatory model collapsing under the pressure of changing law and political practice? Public Citizen cannot answer this question because it is looking at agency performance in the aggregate. It is unable, for example, to explain what might be happening in particular cases, or why deadlocks are occurring across various agency functions. There are certainly instances where the vote for enforcement is as suspect as a vote against it. The result is still deadlock but the reasons for it are not quite what Public Citizen implies. Nonetheless, it being assumed that matters could not have gotten this bad without dereliction of duty somewhere, the FEC takes the blame. It is expected to take up the big issues, such as those involving “coordination” or “dark money”, which are precisely the issues over which disagreement is certain to arise. And so around and around it goes.
One alternative available to the FEC in this period of uncertainty is to commit itself to less controversial but highly productive functions. Bipartisan suggestions have been made, for example, that it could do better in discharging its disclosure function, and in reforming, as Congress has directed, the operation of its Administrative Fines program. There is value in starting with these basic responsibilities. To the Commission’s credit, it has initiated a rulemaking to move in this direction.
And on this question of disclosure, there is much to be done, more than suspected by many who hold the view that, for all the discord and disappointment, campaign finance law administration has performed well on public reporting. Now we have some fresh scholarship by Jennifer Heerwig and Katherine Shaw that subjects this assumption to careful, critical examination. Jennifer A. Heerwig and Katherine Shaw, Through a Glass Darkly: The Rhetoric and Reality of Campaign Finance Disclosure, Geo. L. J. 1443 (2014).