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Thursday, May 07, 2015

 A tentative post on dysfunction at the FEC

Most of the voices in academia and the media are aligned with the "reform" pro-censorship faction, and that is distorting the debate on dysfunction at the FEC. Frequently over the past couple of years the FEC splits 3-3, so it isn't able to do something.

Also complicating things is that the anti-censorship faction is republican. For the academics and media, this equals "bad guys", and democrats are automatically "good guys". Now and then somebody come along who fufills that stereotype, like Hans Von Spakofsky, a bond villian archetype, or the Koch Brothers, who can be hated because they are rich.

But turn it around, and it is, as often as not, the GOP commissioners who are the actual heroes.
We've been living in an era post-BCRA where the Supreme Court turned down an initial challenge, so the FEC was put in a position of being expected to do a number of unconstitutional things as the follow-up cases slowly worked their way through the courts.

WRTL I and II, Davis, Free Enterprise, and Western Tradition Partnership, Inc.
 are examples of where BCRA is being chipped away bit by bit, as the dissenters in McConnell had announced would happen. In CU, the court went beyond BCRA, and finally overturned Austin, which had been an anomaly, like Pico, for those of us who like their First Amendment theory to be consistent, displaying rules or at least standards.  (In another part of CU, the court created new anomalies, but that's for a different post.)

When operating in a grey area, an agency has at least two options. It can steer clear,and exercise prosecutorial discretion to avoid such cases,and focus on its core mission. Or it charge forward, perhaps far beyond what it has any legal right to do. This puts staff and commissioners in the situation of illegally conspiring to violate civil rights. De Jure, they enjoy qualified immunity because these rights are not yet clearly established, and there may be some degree of absolute immunity as well. [Harlow v Nixon?] De Facto, nobody's going to prosecute the FEC when it overreaches, or even disbar lawyers who guess wrong in the grey areas. However, some of the FEC understand their ethical duties to refrain from that kind of misconduct. They did take an oath after all.
Calling such prudence 'dysfunction' is at least mistaken, and perhaps deliberately dishonest for propaganda reasons.


Many, if not all, of the reform faction will grudgingly accept that the FEC shouldn't itself violate the constitution, at least after the courts tell them to stop. There is a lack of consensus about which parts of BCRA are unconstitutional,and it seems unlikely that at some future date the court will tos out the whole mess as unseverable. So the FEC is in the position of enforcing a statutory regime of dubious constitutionality. An unconstitutional statute is void ab initio,and never confers power to the agency.
There are times when the commissioners can have reasonable doubts about how far their authority extends. There is a vast grey area where regulation is suspect,but the courts have not yet ruled with finality.    [this paragraph needs to be moved further up.]

One maxim of how criminal courts are supposed to work is that 10 guilty men should go free to prevent one person from being wrongly convicted. (In practice, being falsely accused at trial is like playing russian roulette - a jury that is 6/7ths sure will convict.)

A similar principle of restraint should guide an agency which is operating in an environment of legl indeterminacy, when it can't know exactly how far its powers extend.

This what reform calls dysfunction.

update http://electionlawblog.org/?p=72326 gop fec nyt letter.

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