“Partisan deadlock” is not the term everyone would use to describe a 3-3 vote through which Republican Commissioners block enforcement of the law against George Soros.  This is what the Republicans did, refusing to proceed with a suit to call him to account for omitting the cost of mailing lists from an independent expenditure report.  Soros had sent out a brochure promoting a book critical of Bush and express in its advocacy of his defeat in 2004.  Among the costs reported, such as postage, the acquisition of a mailing list was not included. 

     The question was—should the Commission sue?  In declining to pursue Soros, the three Repuiblican Commissioners offer three arguments:  one very good, one reasonably good, and one highly dubious. 

     Dubious:  the application of the media exemption.  Now the exemption is a mess; perhaps the Commissioners have made it only slightly worse by effectively turning George Soros into a media entity and his brochure into a media function.  The analysis they have whipped up, however, is slight and unsatisfying, and it is served up with little obvious conviction.  It is not easy to see why these Commissioners bothered, when their other arguments are significantly better.

     Reasonably good:  the Commissioners argue that the Commission issued an Advisory Opinion, years ago, that seemed to remove mailing lists from the category of reportable independent expenditures.  They return to a point they have made before, most recently in the November Fund case, that the FEC should be scrupulous in following rulemaking procedures and should not smuggle in new rules via the enforcement process, most particularly not post hoc. 

     Very good:  The Commissioners believe that, all things considered, this was not a case worth pursuing.  So true:  their prospects for success were debatable, and the cause was not one on which it made sense to spill scarce supplies of agency resources.  Soros reported the brochure costs, after all:  so this was an argument—at best, a close one—over whether the reports should have included the additional dollars spent for the mailing lists.  It does seem that it was time to move on.

     Finally, a note on 3-3 votes:  these are greeted by many observers with something like despair, as if disagreement among Commissioners, along party lines, is a regulatory calamity.  One such deadlock after another, in cases simple and complex, would indeed be unfortunate.  But over the course of the Commission’s existence, this is not really how things go.  Disagreements culminating in deadlock arise just where you could expect them:  in cases where regulatory policy is controversial, for a host of reasons that include regulatory complexity, breadth of impact and, inevitably, political sensitivity. 

     Even in this last case, where partisan interests hover over the decision-making process, other factors, such as bona fide disputes about constitutional limitations, are actively at work.   People do disagree, in good faith, about these issues:  consider the disagreements on the Supreme Court (among other courts).  It would be surprising if, on the hard cases, the same disagreements did not emerge on the FEC. 

     Not all the cases before the agency are hard cases, and it is a stretch to believe that all enforcement—the everyday, routine work of the FEC—is a victim of partisan, ideological or other dysfunctional “deadlock.”  Certainly members of the regulated community do not behave as if this were so.

Bob Bauer