While it is disappointing that Solicitor General Elena Kagan decided not to appeal en banc an overreaching and potentially crippling court decision in the campaign finance case of Emily’s List v. Federal Election Commission, one lesson for defending the nation’s campaign finance laws has clearly emerged from this case: The Obama administration must break the partisan deadlock that has immobilized the FEC over the past year by finishing the appointment of new leaders to the agency, most notably with the replacement of Commissioner Don McGahn, whose term has long expired.
Since the commission was reestablished in mid-2008, partisan 3-to-3 deadlocks have produced the largest percentage of dismissed enforcement cases and the lowest percentage of substantive enforcement actions in recent history. Deadlocked votes in enforcement actions, for example — which prevent the FEC from acting — jumped from less than 2 percent every year since 2003 to more than 16 percent in 2009. The principal force behind these deadlocks is McGahn, who has coalesced the Republican members of the FEC into a voting bloc committed to reversing established regulations to implement the law and preventing critical enforcement actions.
The latest deadlock prevented the agency from appealing an extreme and overreaching decision by a three-judge panel in the Emily’s List case, a decision that not only threatens the authority of the agency to regulate campaign finance activity of political committees but even calls into question the legitimacy of statutory limits on contributions to candidates and political parties in toto (“the constitutionally permitted legislative solution, as the Court stated in an analogous situation in Davis, is ‘to raise or eliminate’ limits on contributions to parties and candidates”). Despite the overreaching nature of the Emily’s List decision, which drew a rebuke from one of the judges on the panel (“The court, however, is not content just answering a gratuitous constitutional question. Its holding is broader than even the plaintiff requests”), and despite the sweeping threat of the decision to the core tenets of campaign finance laws, McGahn and the other Republican commissioners voted to accept the opinion and block an appeal to the full court.
Public Citizen had hoped that Kagan, the solicitor general, would take over the case from the FEC, but today Kagan declined. We hope the decision by the administration not to take over the case is due more to the fact that Emily’s List could be overruled by a more balanced decision in another case currently pending before the courts (SpeechNow.org v. Federal Election Commission) and does not signal that the administration is wavering in its commitment to campaign finance reform.
Implementation and enforcement of our nation’s campaign finance laws will continue to be crippled until President Obama repairs the incapacitated FEC by appointing new commissioners who will pursue their regulatory duties responsibly and professionally. The terms for three of the six commissioners have expired, including that of McGahn. On April 30, Public Citizen encouraged the president to seize the opportunity to fix the FEC and swiftly appoint new commissioners. To date, only one new commissioner has been nominated, ironically to replace Commissioner Ellen Weintraub, who has performed responsibly and castigated the Republican bloc for obstructing the agency’s mission. Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) have placed a hold on this nomination, calling on Obama to fill the two other open seats.
We applaud the efforts of Sens. McCain and Feingold and once again call upon President Obama to learn from Emily’s List and immediately appoint new commissioners for all three seats who will pursue their duties responsibly and professionally and bring the era of a deadlocked FEC to a close.