Citizens for Responsibility and Ethics (CREW) has filed a lawsuit against the Federal Election Commission after the FEC declined to pursue two CREW complaints.
CREW has a history of filing FEC complaints against candidates as part of its advocacy campaign to increase political speech regulation. Many, if not most, go nowhere-unsupported by law or evidence. Like some of these complaints, the current lawsuit looks less like a serious attempt to address a legal issue and more like a P.R. gambit.
For starters, CREW’s lawsuit seems premature. In one of the matters CREW cites, the FEC notified CREW July 23 that the matter had been closed. As even CREW recognized, the FEC has 30 days from that date—Aug. 22—to make public commissioners’ reasons and other materials. Nonetheless, CREW filed its lawsuit Aug. 11.
CREW is right that some Statements of Reasons have been late. Yet CREW never bothered to bring this issue to the FEC. They never, so far as we can discern, contacted commissioners about these concerns, and when the FEC held open hearings about agency procedures in Jan. 2009, no one from CREW bothered to show up.
This complaint isn’t exactly frivolous, but it’s unclear what sort of remedy CREW hopes for beyond a P.R. boost to its effort to raise its profile as a member of the pro-regulation community. In its complaint, CREW seeks an order declaring the FEC’s actions “contrary to law” and another order “compelling the FEC to explain the basis for complaints within 60 days of any dismissal.” Good luck with that. What does CREW think a federal judge is going to do? Head down to 999 E Street NW and sit on the 9th floor until all the commissioners finish their homework?
The dirty secret known by all in Washington is that administrative agencies regularly miss statutory deadlines, and statutory deadlines are regularly written in a fashion that members of Congress must know will be difficult or impossible to meet. The corresponding secret is that there is little that the courts can do about this. This doesn’t make it right, but nor does it make it unusual or particularly outrageous. I know from personal experience that over the last dozen years the FEC’s staff and commissioners, both Republican and Democrat, have worked very hard to reduce the time it takes to handle complaints and to make documents publicly available, despite a “reform” community that has tied up the agency’s resources with endless lawsuits and complaints ranging from frivolous to dubious. Nonetheless, since 1998, the FEC has made considerable progress in this area. This doesn’t make CREW’s latest lawsuit a frivolous one, but it does raise questions about the timing: why now? What substantive result does CREW really hope to achieve?
Besides, in an ironic twist, if CREW really wanted to contest FEC decisions as “arbitrary and capricious,” as it claims, it would probably benefit from the lack of a public statement of reasons by the FEC. After all, an unexplained decision is easier to label as “arbitrary” than one for which reasons are made public.
Beyond all that, CREW lards up the press release accompanying the lawsuit with alarmist language that simply misrepresents the problem.
For example, CREW’s allegation that “candidates can freely break campaign finance laws to gain an edge in a federal election without any fear of repercussions,” is just ridiculous. The vast majority, if not all, of the recent split votes at the FEC involve nuanced, complicated campaign finance issues (some under dispute because of recent court decisions)—not routine enforcement matters. I have never, as an advocate, scholar, Commissioner, and practicing attorney, found a candidate, party or PAC that thinks for one second that it can “freely break campaign finance laws… without any fear of repercussions.” Indeed, I doubt CREW thinks that it could get away with freely breaking campaign finance law. But if they do, it would be fun to watch them prove it. If CREW is correct, what better way to bring attention to their cause than to break the law and show there are no consequences!
In any case, the FEC is making a good-faith effort to enforce campaign finance laws as courts are increasingly ruling to protect more political speech under the First Amendment. The law is not whatever pro-regulation groups such as CREW want it to be. The FEC is not, as CREW claims, a “broken agency” simply because it does not read the law as aggressively as professional campaign finance “reformers” wish. These reformers have a long history of seeing their interpretations of the law rejected by federal courts (the same could be said, by the way, of the FEC) and it does no service to the public debate to pretend that these issues are more simple and clear cut than they are, or that the only reason that campaign finance regulation never seems to work is that the FEC refuses to “enforce the law.”
