The role of an FEC Commissioner, and the preposterous line of the Campaign Legal Center

The Campaign Legal Center published a curious post on its blog, curious because it so fundamentally misunderstands the role of administrative agencies, and those appointed to administer them.

The CLC, like most of the regulatory community, is quite dismayed by the D.C. Court of Appeals decision in EMILY’s List v. FEC, and is now dismayed by the FEC’s decision not request an en banc hearing at the Court of Appeals. Those are both fair positions to take. It’s the CLC’s excoriation of the commissioners who voted against requesting an en banc hearing that demonstrates a gross misunderstanding of the structure of our Constitution and the role of independent agencies. 

CLC begins by declaring that the commissioner are in “gross dereliction of their duties,” and argue that the commissioners have an “obligation …to defend the agency’s regulations, and to seek en banc and/or Supreme Court review.” What?

There is no reading of administrative law anywhere that says that commissioners have an obligation to defend regulations in court. In fact, we believe CLC knows that full well, and is simply engaging in an intentional smear of the Commission. Why do we think that? 

For example, in 2007, when a District Court struck down FEC regulations that CLC did not like, CLC did not argue that the FEC had a duty to appeal. Likewise, when a D.C. Circuit panel ruled against FEC regulations that CLC did not like, it did not suggest that the FEC had to request an en banc hearing — rather, it joyfully declared, “Strike Three! You’re Out.” Later, CLC lobbyist Meredith McGeehee, who fancies herself an ethics expert, raised no concern about the Commission’s decision not to pursue more appeals. In short, the CLC has never before expressed the view — at least when it liked the FEC’s decision not to appeal — that the FEC had a duty to appeal a judicial decision about its own regulations. Others in the so-called reform community have a similar history of being perfectly content when the FEC has not appealed decisions striking down FEC regs.

Arguably, the FEC has a duty to appeal decisions by a lower court that strike down federal statutes (though this duty is clear not unlimited). But there is no duty for the FEC to appeal decisions regarding its own regulations, which, after all, the FEC can change or abolish any time. 

CLC goes on to argue, “It appears these Commissioners are under the false impression that they have been appointed to the federal bench, and given the power to rule on the constitutionality of federal laws and regulations, rather than being paid by a government agency to represent its interests.”

Apparently, over at CLC they are not aware that FEC Commissioners take an oath to uphold the Constitution, which would seem to require, at a minimum, some review of the agency’s own regulations for their constitutionality. To suggest that the agency should not consider the constitutionality of its own regulations is preposterous.

Beyond that, CLC goes on to the usual smear campaign that we’ve come to associate with CLC. In particular, they accuse the commissioners of putting their personal beliefs before “the law,” by which CLC means that the Commissioners are putting their interpretations of “the law” before CLC’s interpretation of the law — a cardinal sin in the so-called “reform community.” CLC also insists that “the panel decision decided issues not before the court, ” even though both the Court and the commissioners who voted not to appeal have noted that those issues were before the Court — you can link through to and read their opinions here. But CLC, following a traditional pattern of reform groups, does not want to engage the complicated legal issues of campaign finance. CLC’s apparent belief is that if is simply repeats over and over that only its interpretation of the law is correct, and that the Commission is “not enforcing the law,’  they can get away with avoiding the tough legal and constitutional questions that have hounded the “reform” effort for a century.

CLC’s bit about Commissioner duties is all utter nonsense. There are arguments that one might make, on the merits, that the D.C. Circuit panel was wrong, and there are arguments that can be made, on the merits, that the Commission should have appealed that decision. We would probably disagree with those arguments, but that’s another story. What is revealing is that reform organizations such as CLC and Democracy 21 — see its panicked response here — seem either incapable or unwilling to debate the merits of such actions.