Federal election commissioners versus the Federal Election Commission


In an odd twist even for a federal agency known for its fecklessness and divisiveness, some commissioners are challenging their own commission. Typically they merely oppose each other–along partisan lines.

Bizarrely, a group suing the Federal Election Commission submitted a statement supporting its case in court this week by Republican commissioner Donald McGahn. Which means McGahn is backing a suit against the body on which he serves.

The rigmarole started in June but came to a head Thursday, when a complicated case involving obscure aspects of campaign finance law landed at the Eastern District Court of Virginia. Judge T.S. Ellis III, who has said he is aware of the matters’ timeliness because of Novembers’ election, could issue a decision any day.

The three Republican-appointed commissioners, two of whom were on hand at the hearing yesterday, oppose the official legal action of the commission's lawyers. The commission’s professional staff of lawyers—the Office of The General Counsel–is defending the FEC in court.

At issue is the interpretation of so-called electioneering communications laws. The political action committee suing the FEC, the Hispanic Leadership Fund, wants to run television ads critical of President Obama but says it is refraining from doing so for fear that it will be prosecuted in the future for not reporting ad spending to the FEC. The HLF’s lawyer, Jason Torchinsky, is an advocate of loosening campaign finance regulations.

The three Republican commissioners, who have also sought less restrictive rules than their Democratic counterparts, are alleging that the OGC is serving as a “tie-breaker,” in the words of McGahn, of a deadlocked, partisan commission. During a court recess yesterday, McGahn said that the three Democratic commissioners are acting outside of the campaign finance regulations, and that the Office of General Counsel is following their misguided views.

Back in June, the commissioners deadlocked along partisan lines, as they often do, on whether a series of ads proposed by a political action committee called the American Future Fund — also represented by Torchinsky — could be considered so-called “electioneering communications,” and therefore be reported to the FEC.

Because of the deadlock, the FEC took the position of the so called “controlling group” of commissioners in court – which in this case was three Democratic commissioners who opined that many of the ads counted as electioneering. The commission's lawyers are defending, in their view, the status quo.

Much has changed since June. For starters, the Hispanic Leadership Fund took over the issue from the AFF to challenge the FEC in court. The law has also changed. At the time, the most recent court ruling in an ongoing legal case called, Van Hollen v. the FEC, required airing electioneering communications to disclose donors. Torchinsky said the AFF feared having to do so, and that's why the AFF was not airings its ads. But the Van Hollen decision was reversed this week, meaning groups like HLF would only have to disclose their donors in very rare circumstances. Still, Torchinsky says he fears that the law may be reversed by the next election.

The HLF ads are clearly designed to target Barack Obama—even Judge T.S. Ellis said as much to Torchinsky, the lawyer opposing the FEC. They attempt to get around the law by mentioning the “White House” or “The administration” instead of the president himself. Naming a federal candidate makes an ad an electioneering communication but Torchinsky and the three GOP commissioners argue that using "White House" is not an "unambiguous reference," to use the exact rulemaking language, to the president. 

The statute itself is quite ambiguous, as Ellis suggested in detailed discussion of most of the proposed ads during the hearing yesterday, asking questions of both the FEC’s lawyers and Torchinsky.

The judge could decide to issue a ruling on whether these ads are electioneering communications, essentially filling in to do a job that the FEC has neglected to do. Or he may agree with the FEC lawyers' position and not make a declaratory judgment, which the commission's professional legal staff argues he should do since the agency has not taken any action against HLF, and there has not even been a complaint filed against the HLF.

“It is perfectly reasonable for the court to say it’s too early to rule on this," said FEC lawyer David Kolker. He noted that courts have taken that course of action in previous cases where the commissioners deadlocked.

But Torchinsky is on a mission to see that electioneering law is clarified, he said after the hearing.  He also claims, as McGahn does, that the HLF’s First Amendment rights are being breached. The judge tartly dismissed that argument.

“You’re not speaking because you’re not thick-skinned enough,” Ellis said in the courtroom, referring to the HLF's refusal to run its ads. But, the judge conceded, that there is some chill because HLF does not want to risk prosecution in the future.

Democratic Commissioner Steven Walther also attended the hearing. He said the judge appeared "up in the air" on these issues. He declined to say whether he would like to see Ellis make a ruling, which would clarify the law, or whether he agreed with the OGC that it's too early for such a ruling.