Elias: Well, there was a provision for parties to have lowest unit rate, which would have decreased the price of advertising for parties. There was a provision for parties to begin to be able to coordinate more with their candidates, which would have been a positive for parties.
Toner: There are two very straightforward solutions when it comes to parties: either unlimited coordinated expenditures with no ifs, ands or buts, or no contribution limits to parties. That’s a very straightforward approach.
Reiff: Well, this is my Sally Struthers moment: don’t forget about the poor state and local parties. If anyone got royally screwed by the Bipartisan Campaign Reform Act it was state party committees. It’s one of my primary areas of practice and it’s obviously been a boon for me because the organizations that are most regulated are state party committees. The reform groups—and I don’t know why—keep pushing the FEC to write even stricter regulations. I can tell you right now that the state parties are having a rough time.
Torchinsky: One other logical outgrowth of Citizens United that may come this year or may come after November is challenging this idea that you can prohibit corporate contributions but still allow unlimited individual contributions. I think the prohibition on corporate contributions directly to candidates is inconsistent with the logic of Citizens United.
C&E: How well has the FEC handled all of this since 2010?
Lenhard: I think it’s clearly a difficult period for the commission. There is a more profound ideological divide among the commissioners today than I think there has historically been when it comes to the appropriate scope of the law. On the other side of the coin, there is a lot of stuff happening there that gets no press. One technical issue that everyone in this room deals with a lot is the question of what constitutes the restricted class of a corporation. We’ve seen four decisions there in the last two years, and there’s another one pending. So that’s just one area where the commission has been helpful and that’s important for practitioners.
Reiff: If you were a practitioner back in the day and you were trying to strategize about your case and how to deal with the FEC, who you were as a party committee mattered. But now, whatever you want to say about the commission, the variable of who you are is much less important than it used to be. As a Democratic attorney, I’m getting a much fairer shake on an issue with the full commission, based on the issue itself and not based on who my client is. I find that refreshing.
Toner: I think that’s a very important comment, because any allegation that the FEC is functioning in a partisan manner … I just don’t see how you can seriously advance such a proposition. In fairness, when you have sweeping judicial rulings like this, it’s always a struggle to try to implement those decisions as an administrative agency. But the idea that this is some partisan undertaking? The record just doesn’t support that. I’m not sure that anyone at this table would be comfortable with an agency that could proceed on a party line vote, yet that’s the premise of virtually every proposal to overhaul the agency. I would be gravely concerned about that.
Torchinsky: The one thing I will say for the current crop of commissioners is that when major issues do come up, at least you know where the commissioners stand. If you submit an advisory opinion or have an enforcement action, you know where the commissioners are going to be. Regardless of whether the complaintant or the respondent is a Republican or a Democrat, these commissioners have been remarkably consistent about the positions that they take. I really admire the commission for that.
Elias: One of the things that Michael had pointed out to me years ago, and that I had never contemplated, is that the FEC is somewhat unique in that the staff does not operate under the direction of the chair.
Toner: Right. It’s not like the Federal Communications Commission where if you head a bureau at the FCC, you work for the chairman. The FEC is a different animal.
Elias: And that impacts a lot of things— not just at the commission decision level, but all the way down the agency.
Torchinksy: At the lower levels you have a lot of staff driven proceedings where the commissioners aren’t involved. The commissioners aren’t driving the day to day activity of the agency.
Lenhard: And to be somewhat more generous to the staff, what they would say is, “We have no idea what those commissioners are thinking because they never agree on anything. We’re just doing the best we can.” The product is that there’s not a singular titular head of the agency with direct command and control over the staff. There are six people who have direct command and control over the staff.
Toner: It also really matters who the general counsel is. It really matters who the staff director is. I’m confident that 99 percent of your readership probably isn’t aware that the FEC has a staff director, and if so, what does that person do? The audit division, for example, reports to the staff director. Similarly, the general counsel side serves a very important role. You’re making recommendations to the agency and you have hundreds of lawyers reporting to you. It’s an important piece of the puzzle.