Just five weeks before mid-term elections expected to be fraught with closely contested races, the Federal Election Commission, in a meeting on October 4, has altered the way recounts are funded, making them subject to federal election fundraising limits rather than being exempt from those as they have been for nearly 30 years. Saying that current campaign finance law applied only to the election and not recounts, the commission’s chairman, Michael E. Toner and commissioner Hans von Spakovsky voted against the compromise. Election law specialist Bob Bauer published the following commentary on his blog. It is reposted here with permission.
It looks better when the FEC reaches some agreement on an important issue. Or so say the many who are repulsed by partisanship (a name they use casually for disagreement, especially with a position they favor). Even more pleasing to the eye is an agreement reached across party lines that accords with the viewer’s preference. The best of all worlds: bipartisanship in reaching the right decision, which is the only brand of bipartisanship that admirers have in mind when they promote it. For bipartisanship seems to be a blessing only when the decision reached is “right”; it is a conspiracy, a nasty of bit of self-protection, when the decision is “wrong.”
This is the cluster of assumptions behind the quiet satisfactions in the press, and the good cheer in the reform community, in the wake of the FEC’s decision on recount refinancing. Four Commissioners voted to restrict the individual monies raised by candidates for recounts, effectively extinguishing a long-standing rule (entitled “recounts”) on the books (11 C.F.R. 100.91 and 100.151). Three of them appeared to believe that McCain-Feingold repealed the rule without saying so. Compromise—a decision, breaking a partisan deadlock—was achieved when one Republican joined the Democrats in relaxing the rules for party spending on recounts. Now parties (at least state parties) can spend without limit, even if they cannot raise without limit, to help their candidates with a disputed vote count.
Some compromise is better than none, and more flexibility in the funding of recounts is undoubtedly preferable to less. The allowance for party spending is sensible. As the way to compromise, it was creatively conceived.
But the FEC’s decision is not the finest example of lucid law-making, neither in its particulars nor as a matter of policy. There is, first, the not inconsequential business of simply reading a rule out of the regulations. We hear, all the time, how the FEC must more conscientiously enforce the law, but then it is excused the lawless of act of invalidating, without any of the required procedures, an existing regulation. The Campaign Legal Center and others sharing its mission won’t complain, the rule being one that they do not like. The rest are left to wonder about the moral authority of lectures about “law enforcements” when the lecturer is free to pick and choose the law to be enforced.
Defenders of the agency reply: yes, but the statute (McCain-Feingold) “trumps” the rule. Of course, in this same statute is found a specific act of repeal, the one directed at the coordination rule then in place, but Congress nowhere—not in the legislative history nor in the statute—indicated any interest of the kind in striking the rule exempting individual recount donations from the contribution limits. So the statute cannot be said to have “trumped” the rule. It simply left in place an exception, for recounts, to its general rule limiting individual contributions raised by candidates. And it is a significant exception, serving important purposes. Its “repeal” is not lightly presumed, and indeed it never occurred.
The opinion emerging from the compromise (Draft A as amended) is—speaking politely—quirky. An individual who donates to a state party recount fund is not making a “contribution,” and yet the donation is subject to a contribution limit ($10,000 a calendar year). This is a limit separate from the regular limit for that year. So the law that permits contributions to state parties up to $10, 000 per calendar year allows, apparently, annual contributions up to $20,000, but only if the second contribution, for the recount, is treated as both a donation and a contribution. It is a donation so that it can be made at all, and a contribution so that it can be limited. As a colleague said to me, in some wonderment: "They just made this stuff up.” We can credit the good intentions here without denying the out-and-out sausage making.
We see the same backroom politicking in the special provision made for parties. Parties are limited in coordinating their spending “in connection with” their campaigns in the general election. The FEC, which vigorously defended this limit against constitutional challenge (FEC v. Colorado Republican Campaign Comm., "533 u.s. 431 (2001)), waived it in this instance, in the interests of compromise. In the Colorado case, unlimited, coordinated party spending was depicted as another stop on the road to corruption. But in the recount case, a “loophole” was discovered: the limit applies to spending in connection with a “campaign” and, by definition, a campaign has ended by the time that a recount has begun. The limit cannot apply: so reads the law.
Here there begins to show, painfully, the internal contradictions of the compromise. For if the statutory language, read this strictly, can “trump” the overriding anti-corruption purposes of the law, defended so stoutly in Colorado, why would the FEC be prepared to risk “corruption” with parties when it was so determined to guard against that risk when presented by individual contributions? Now parties can make unlimited contributions to a recount effort; individuals cannot. For party supporters (this one included), this distinction might make sense, but the FEC—later vindicated by the courts—went to great length to refute it. The FEC has now reversed course, relying on the “plain language of the law," even though it has refused to follow a rule, still more “plain” in language and purpose, that would require the same result, the same exemption, for individuals.
Reform organizations can live with any such contradiction if it helps deliver the desired result—which in this case was the de facto elimination of a rule of many years standing. A higher law “trumps” the routine, man-made law so inconveniently burdened in its promulgation and modification by APA “notice and comment” and other such constraints. Of course, in truth, political bargaining bent the law to the demands of compromise. Everyone got a little out of it, which is what politics often has to offer, but law enforcement is not among the spoils.
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