FEC Deadlocks and the Role of the Courts

by - June 24, 2014

Time after time, in fact, in Citizens United and before, the courts have been criticized for a shallow understanding of the political process and the workings of campaign finance. What then is gained from dismissing the significance of expert indecision and asking judges to force an outcome with much less to go on? At the end of their statement, the Commissioners suggest another reason they or others may have for moving courts into a more active role on deadlocks, and that is the need to police partisan and ideological behavior among Commissioners.  The problem to be addressed would not be disagreement among experts, but rather a sort of bad faith getting in the way of truly expert judgment “on the merits.”  The courts are freed from any obligation of deference and must step in. This is a hard to demand to make of the courts. Those who believe that the courts themselves have become political or ideological in their decisions on these issues will be loath to trust them to correct the same tendencies attributed to the FEC.  There is plenty of distrust to go around, and no consensus on where to go to escape it.  At any rate, objections to putting the courts in this role don’t have to depend on morbid suspicion of judicial or agency motives.  The entire question of what counts as pure politics or ideological inflexibility amounting to bad faith is never answered to anyone’s satisfaction in arguments about campaign finance. What is ideology to some is principle to others, etc.

Source: FEC Deadlocks and the Role of the Courts - Bob Bauer

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