Who says Right and Left can’t agree?

Did the D.C. federal appeals court overstep in its judgment last week that Federal Elections Commission rules should be rewritten as stricter? That was my opinion on the rising of the McCain-Feingold Ghoul.

Who says Right and Left can’t agree? Below, with permission, is cross-posted the entire blog entry by Barack Obama’s campaign law advisor, Bob Bauer. Bauer also served as campaign law counsel to the Democrats in the House and Senate. Bauer exposes “the superficiality of the Court’s reasoning.”

Bauer is not an outright opponent of McCain-Feingold, but he is both a learned and practical critic. We occasionally correspond, I commenting he often sounds like a conservative, he replying he’s a staunch progressive. Perhaps it’s just that Bauer applies – pardon the term, since he takes it to task below – common-sense. As Bauer says, “the Court’s performance was exceptionally unpersuasive.”

This case is ripe for appeal to the Supreme Court. How it may decide is an interesting question, as it has restricted other campaign law impositions on free speech but also been respectful of literal language in laws.

Aside from public disclosure of contributors, McCain-Feingold has contributed little to better or cleaner politics. Instead, it has added layers of convoluted avoidance, and even concentrated more power over elections in those who can afford to maneuver the maze. Bauer believes there’s more to be saved, or new approaches to consider. I read his blog column daily, and thus far have found it “exceptionally unpersuasive” – to borrow Bauer’s term again – on this score. But, reading his posts are important to understand a strong strand in the ongoing debate.

Allison Hayward, former FEC attorney, whose blog has been inactive of late, replied to my email for comment:

I'm not blogging much these days - have pressing deadlines.

It's a coherent, incomplete opinion. It is based entirely on administrative law doctrine, with no respect at all for the constitutional issues the FEC also must face. It is written as though the Court's latest word on campaign finance regulation, in Wisconsin Right to Life, hadn't even happened. It pretends like the FEC could regulate activity based on a "purpose or intent" standard, when the Court in Buckley clearly stated it (or Congress) couldn't, and there's no reason after WRTL to think the Court is getting any softer on that point!

Where's Judge Griffith [Republican appointee] in all this? I'm not that surprised that Tatel and Garland [Democrat appointees] would sympathize with Shays. But Tom Griffith was the Senate Counsel. He should know better.

I also emailed former FEC Chair Brad Smith for comment, and will add it if received.

Now, on to Bob Bauer’s every-word a gem post:

The Courts and the FEC: Sad Lessons To Be Drawn from the Shays Case Posted: 6/16/08

The Court of Appeals is just very hard on the Federal Election Commission. It agrees with the habitually critical District Court, one more time, that the FEC mangled the development of rules implementing McCain-Feingold. Unless the agency appeals to the US Supreme Court, it must, 6 years after the enactment of the statute, commence another round of revisions. And the Court of Appeals does not stop there: it also scolds the FEC for tardily raising a standing issue about Congressman Shays: "we are disappointed in the FEC for raising this issue so late that Shays had no adequate opportunity to respond." Opinion at 14.

The FEC must have the feeling, the very strong feeling, that the Court does not think the agency up to the task, and that for this reason, it will be supervised all the way to the end, to a degree of detail and policy judgment that courts ordinarily and properly avoid. The FEC should be forgiven for thinking so: it is right.

On the one hand, the Court affirms that, in principle, "the Commission certainly has discretion in choosing exactly where to draw a bright line" (id. at 27) in crafting a rule; discretion to "leave a large grey area and fill it later through adjudication and advisory opinions" (id. at 32); discretion and indeed the duty to exercise "expert judgment to which we owe deference" (id. at 29). It even encourages the Commission to build First Amendment judgments into the line-drawing it performs. Id. at 21.

Just at the point where these high principles are applied to the construction of rules, the Court decides that the FEC misses the mark. In the coordination rules, the Court concedes that the FEC assembled data and made its judgment on those facts, concluding that outside 120 days prior to an election, for Presidential elections, and 90 days in the case of Congressional elections, it would not attempt to restrict "coordination" between candidates and others that fund public advertising of various kinds. The FEC did not believe that the data warranted an extension beyond these time periods: it did not find enough of this activity to make it worthwhile. Some such coordination might take place in this unregulated zone, but what did occur was too slight in significance and quantity to make a difference. The Commission, in short, drew a "bright line," and hoped in vain for deference.

The Court disagreed, and the weight of its contrary judgment must depend in part, it would seem, on the superiority of its reasoning. It is not easy to see this superiority. Twice, the Court appeals to "common sense" (id. at 23, 24), which is the way arguments are avoided and not made.

The rebuke "don’t be silly!", which is all the Court can mean in this reference to "common sense," means little else than that the Court wishes to stamp its own judgment with the appearance of absolute obviousness. It is clear to the Court that the Commission is creating an "enormous loophole"—though for this, over a period of six years, there has been no evidence. And then the Court affirms, with a flourish, that it has both history and a better understanding of "human nature" on its side. Id. at 24.

Take your pick, then: the administrative agency, amassing data and making a judgment on a complex question fraught with constitutional implications, and a Court secure in its beliefs about what "common sense," "history" and "human nature" requires. The FEC wins this one going away, largely but not only because the Court’s performance was exceptionally unpersuasive.

What is going on here? Over the years that McCain-Feingold has been debated, the courts have displayed increased confidence that they "get" the sneaky games with money that the law, focused on circumvention, was meant to stop. Along with this conviction has come the certainty, derived from the daily and editorial press, that the FEC is in cahoots with parties and candidates to undermine the law. The Court’s opinion is teeming with signs that this is very much at work in this case.

And yet in the end, the superficiality of the Court’s reasoning—and the absence of any indication that there is a definable sphere of discretion left to the agency to do its work, safe from the intrusions of judicial "common sense"—demonstrates that this cannot take the law or the process by which it is developed to a good place. This is, after all, an Opinion in which the Court sets out a dictionary definition of soft money, taken from the fourth edition of the American Heritage Dictionary (3), ("Political donations made in such a way as to avoid federal regulations or limits, as by donating to a party organization rather than to a particular candidate or campaign")—a definition suffering from incompleteness and technical problems, from sheer uselessness, that would be graded harshly if appearing in an answer to a law school exam question.

And it is further an Opinion where the Court writes that BCRA "authorize(s) candidates to solicit up to $20,000 per individual to fund state party GOTV and voter registration activities" (citing 2 U.S.C. § 441i(e)(4)(B). Id. at 36). BCRA does no such thing; the provision it cites does not apply to State parties at all. The Court is in a poor position to direct the FEC in a proper understanding of the law when its own grasp of the statute is inadequate and cannot be strengthened by resort on crucial terms to the American Heritage Dictionary, Fourth Edition.

Bob Bauer