An Embarrassment at the FEC

If you want to know why things seem so contentious at the Federal Election Commission, we would call your attention to a recent Statement of Reasons by Commissioners Ann Ravel and Ellen Weintraub.

Last month, in MUR 6535, the Commission reached a conciliation agreement with Restore Our Future, a Super PAC that advocated the election of Mitt Romney in 2012. Restore Our Future had, in 2012, republished substantial parts of a 2007 ad run by Romney’s 2008 presidential campaign. Commission regulations provide that the republication of campaign materials “prepared by the candidate, the candidate’s authorized committee, or an agent of the foregoing” is considered a contribution for purposes of contribution limitations and reporting responsibilities of the person making the expenditure. If applied to Restore Our Future, then the organization vastly exceeded contribution limits and failed to report properly.

To try to summarize the complex positions of the parties, Restore our Future basically argued that the Romney 2012 campaign is different from the Romney 2008 campaign–thus Restore Our Future’s republication of a 5 year old ad in a different campaign would not violate the regulation against republishing a campaign’s materials. Noting that “[t]he Commission has not considered whether the phrase ‘campaign materials prepared by the candidate’ is limited to campaign materials prepared during the same election cycle in which a third party republishes the materials,” the Commission’s Office of General Counsel (OGC) implicitly agreed that if Romney had formed a new legal entity for his 2012 campaign, as is frequently done, it would not have been decisive but there would be substantial merit to Restore Our Future’s argument. In this case, however, Romney never terminated his 2008 campaign committee, and simply renamed it and designated it as his official 2012 committee. Hence, OGC concluded, this difficult issue was avoided because the ad in fact did, literally, republish “campaign materials… prepared by… his campaign committee.”

Eventually, the Committee, without admitting liability, agreed not to contest the Commission’s finding that it had violated the law by republishing the ad, and to pay a $50,000 fine. This set off Commissioners Weintraub and Ravel, who complained that the penalty seemed minuscule in light of the fact that Restore Our Future may have spent over $4 million on the ads in question. Fair enough. What is discouraging, however, is the unproductive nature of their dissent from the settlement agreement.

The Commissioners write, in a snarky footnote (number 7) that has too often become their style, “The laws of reason have been suspended at the FEC, where corporations are people, commissioners are not, and now Mitt Romney gets to be two different people.” What the heck are the Commissioners talking about?

The “corporations are people” bit appears to be a complaint about the Supreme Court decision in Citizens United v. Federal Election Commission, not actual goings on at the Commission. The second has to do, it appears, with the effort by Ravel and Weintraub earlier this year to file a public petition for rulemaking with the FEC. The Commissioners wanted to the FEC to pass a rule that would have greatly expanded the Commission’s regulatory reach on a rather dubious theory of statutory construction. When it became clear that they could not persuade a Commission majority to open such a rulemaking, they sought to force the Commission to open a rulemaking by filing a petition with their own agency. And the third–“Mitt Romney gets to be two different people”–addresses the MUR in question.

It is bad enough that the commissioners are using a Statement of Reasons in this MUR to complain about Supreme Court and Commission decisions elsewhere. But what is so embarrassing is the sheer demagoguery of the footnote.

Corporate personhood is a longstanding legal doctrine, dating back to the earliest days of this country and with even deeper roots in the Common Law. It provides numerous benefits to society, including the right to sue corporations and to transact business with such corporations. But while lawyers are familiar with it, most citizens know no more about corporate personhood than they would about the Rule Against Perpetuities or hearsay (rules which can sound strange until one has learned them and why they were created). “Corporate personhood” doesn’t mean that “corporations are people,” but if you say that’s what the Court held in Citizens United, it does sound a bit bizarre.

In fact, though we would not agree, there are many reasons that one might think that Citizens United was incorrectly decided. Complaining about “corporate personhood” is not one of them. Not a single judge or justice at any phase in Citizens United–and that means none of the dissenters–raised the question of corporate personhood–nor did the FEC itself or the Solicitor General’s office in defending the constitutionality of the statute. This behavior by Weintraub and Ravel–both of whom have law degrees from elite law schools–is just embarrassing. Either they do not understand a basic legal concept of corporate law and the holding of Citizens United, or worse, they pretend not to understand them in order to fan popular misunderstanding of the case.

Similarly, their complaint about the Commission voting not to accept their petition for rulemaking is simply absurd. Most ordinary citizens are not experts in statutory construction. But at some point in their law schooling or legal careers, Commissioners Weintraub and Ravel surely learned that the term “person” in a statute can have defined meanings, and that not all natural persons have standing in every administrative procedure. The absurdity of their complaint should be immediately obvious–they are the agency–at least part of it. Filing a petition for rulemaking on something they failed to gain through their positions at the agency, as if they had no say, is simply grandstanding unbecoming of a commissioner.

Further, bringing these issues up in an unrelated matter, in which they have no relevance, is not the kind of behavior intended to lead to better discussion or a better functioning FEC.

We have no problem with sharp disagreements between commissioners, plainly expressed. But Commissioners Weintraub and Ravel are neither attempting to persuade their fellow commissioners, nor some future commissioners or court, nor are they attempting to educate the public. To the contrary, their snark is intended to inflame other commissioners, and to confuse the public as to the basis on which the Commission is deciding matters–the latter in order to prevent a more serious, rational public debate on what should be FEC policy.

Which brings us to this action. As we’ve noted, there are valid reasons why a commissioner might oppose a settlement of $50,000 on expenditures of over $4 million that that commissioner believes were illegal. But the defense raised by Restore Our Future is not trivial–can it be an illegal republication of a campaign’s materials if the materials are not part of the existing campaign for the office sought? And this is before one gets to the questionable theory that prohibiting republication, absent any coordination or request (and all seem to agree that there was no request or coordination here), passes constitutional muster at all. See Colorado Republican Federal Campaign Committee v. FEC (“Colorado Republican I”) (holding that there must be actual coordination before an expenditure is subject to limits.)

Note that the next step for the FEC, if an organization does not agree to a settlement with the Commission, is to sue that respondent in court. The Commission has to take into account the odds of winning, the costs of suing, and the value of gaining a penalty. It must do this against a constitutional backdrop that makes overreach an appropriately risky undertaking for the Commission. When we consider that there really isn’t a serious argument in this case that there was an anti-corruption interest either in 2012 or now, and that Restore Our Future would probably have been fine if only Romney had chosen to terminate his 2008 campaign committee and start a new one for 2012, rather than use the same one, the case for a hardline approach may quite logically be unappealing to some commissioners. Neither the defense offered by Restore Our Future, nor the position of the Commission majority, in accepting the petiton, was that “Mitt Romney gets to be two different people.” That’s juvenile snark, and at some level Commissioners Weintraub and Ravel must know it. Rather, it was that there is a serious question as to whether it is illegal republication of campaign material–the illegality of which stems from labeling it a per se form of “coordination”–when that material is from a 5 year old, completed, unsuccessful campaign and there was not, in fact, any actual coordination to begin with.

There is no value in simply misrepresenting the position of those with whom you disagree. The FEC is supposed to be an expert agency. Commissioners Weintraub and Ravel have spent much of the last year complaining that the Commission doesn’t work. Physicians, heal thyselves.