Making law with lawsuits: understanding judicial review in campaign finance policy.

Author:Curry, Rebecca
Position:IV. The Judicialization of Campaign Finance Policy After 1974 through VI. Conclusion, with footnotes, p. 416-440

    As Congress set out to revise campaign finance policy again in the wake of Watergate, lawmakers seemed to put a priority on overriding the recent judicial rulings that had increased costs and reduced benefits for incumbents. Somewhat ironically, the new law would give even more discretion to courts in campaign finance policy. This time, however, the statute harnessed judicial policymaking in a way that would serve incumbents' interests. Indeed, the 1974 FECA contained many features that promised to restore control over campaign finance policy to the elected branches. This Part examines those elements of the law and analyzes the political support behind their enactment.

    1. Reining in Legal Enforcement

      Legislators had long been aware that an independent enforcement mechanism would be needed if campaign finance laws were to become any sort of meaningful limit on federal elections. Sponsors of campaign finance bills had called for the creation of such an entity as early as 1966, and a unanimous Senate vote authorized a bipartisan FEC the following year; it was only when the House opted not to pursue it that the proposal died. (150) Similar efforts had likewise been made in connection with the 1971 FECA, but ultimately rejected. (151) Thus, it was not for lack of imagination that there was no independent regulatory agency in charge of campaign finance policy before 1974. Rather, lawmakers seem to have resisted this option out of a desire to keep campaign finance enforcement closer to home, with the legislative staff.

      When the 1974 Amendments authorized Agency enforcement of campaign finance law, they did so with an FEC that was much more politically encumbered than the traditional independent regulatory commission. (152) First, the Agency's policymaking power was hamstrung by virtue of its even-numbered board. (153) And, initially, the FEC's six members were to be appointed jointly by all three elected bodies, with the House, Senate, and President nominating two commissioners each. (154) (This appointment scheme was ruled a violation of separation-of-powers principles in Buckley v. Valeo) (155) The Clerk of the House and Secretary of the Senate also sat on the Commission, as nonvoting members, until that too was found to violate constitutional prerogatives in the mid-1990s. (156) Further legislative oversight was guaranteed by controls on both the Commission's budget and its rulemaking. Thus the Agency was denied multi-year funding, and instead has always had to present its budget to Congress annually. As Congressman Wayne Hays, the Chair of the House Administration Committee, informed the first FEC Chair at the time, this was explicitly to prevent the Agency from establishing too much independence from Congress. "You're not going to set the ground rules," he said. "As chairman, I'll tell you. You're coming back every year for an authorization." (157) Finally, from the FEC's inception until the practice was ruled unconstitutional in 1983, Congress subjected the Agency's regulations to legislative veto. (158) While the Agency was obviously different from the legislative staff oversight characteristic of the past policymaking structure--and was therefore, technically, a delegation of campaign finance policy--it was much more responsive to incumbent interests than enforcement via class action suits or even by the DOJ. When Congress vested this body with primary jurisdiction to enforce FECA, it returned to a more direct policymaking structure for campaign finance. (159)

      More subtly, the 1974 Act reinstated political control over enforcement by changing what had been criminal provisions in the earlier FECA to civil ones. (160) Not only did this take the GAO and the DOJ off the front lines of campaign finance law enforcement, it also critically undermined private litigants' jurisdiction to pursue their own allegations against federal candidates. As discussed above, reform groups had won a private right of action to sue regulatees directly, in civil court, for alleged violations of criminal statutes. (161) Eliminating such criminal provisions from the law had the effect of eliminating the most potent form of civil enforcement then underway. The change effectively overrode the holding in Common Cause v. Democratic National Committee. (162) With respect to most possible campaign finance violations, interest groups would now have to file their complaints with the FEC rather than with the federal courts, and they could no longer sue regulatees directly. Enforcement matters would end up in a public trial only where regulatees failed to reach an administrative settlement with the FEC.

      These aspects of the 1974 Amendments evidence an overall effort to regain congressional autonomy in campaign finance policy. They go hand-in-hand, for example, with the preemption it effected on the many campaign finance restrictions that the states were passing in that era, (163) and with its unusually short statute of limitations for criminal prosecutions (reduced from the federal norm of five years to three). (164) And they were especially intended to combat the influence reform groups were having in the field. One particularly telling example of that effort was in a FECA provision referred to as the "Common Cause Amendment," which extended the new restrictions to the very same reform groups that had lobbied for campaign finance law in the first place. The House Majority Leader explained the provision as follows:

      We also have a little thing in here which I think the Members might be interested in. That is, we require any organization which spends any money or commits any act for the purpose of influencing an election, must report as a political committee ...; if it goes national and issues reports purporting to condemn somebody for voting such a way, it has to report. We have to know the source of its income. If we want to know who that is aimed at, I do not want to say out loud, but their initials are C.C. (165) This was discussed more openly as the "Common Cause Amendment" in legislative debate, and it was passed along with the rest of the regulatory package. (166)

      Oddly, though, while the statute contained provisions that severely restricted litigation by citizens and interest groups, it did not seek to foreclose judicial review per se. In fact, the 1974 FECA actually empowered the judiciary to make and alter campaign finance policy more deliberately than any other such law in the nation's history. As I have argued from the outset, the Act marked a distinct turning point in the judicialization of campaign finance by virtue of its special mechanisms for bringing courts into policy decisions in this field. Examining these several mechanisms in turn, we can see that they all empower courts to make policy.

    2. Increasing Judicial Discretion

      Among the elements contributing to the judicialization of campaign finance policy in the 1974 Act were two unusual mechanisms for abstract review by courts. The first was expedited review, which authorized a special, accelerated process for constitutional litigation under the Act. (167) Under this procedure, a party seeking to overturn the law needed only to file a claim with a district court. (168) No trial would be held; instead, constitutional questions would simply be certified up through the appeals court to the Supreme Court. (169) As is the case any time expedited review is included in a federal statute, this had the effect of empowering the judiciary, especially the Supreme Court, relative to the other branches. Congress mandated that the Court weigh in on the policy in much the same way that a legislative conference committee would, by making decisions about the scope and meaning of the law before it ever took effect and having a free hand to revise provisions that legislators had enacted. Adding to this judicial "veto" power was the Act's severability clause, which left standing any provisions of the regulatory scheme that the courts did not explicitly overturn. (170) While perhaps seeming to limit judicial discretion, severability enables the courts to pass a very different regulatory scheme than the one enacted by Congress. (171) Often, judge-made policy--being last in time and carrying with it the imprimatur of constitutional law--endures much longer than congressional policy.

      A second form of abstract review was imposed on decisions of the FEC, although perhaps less intentionally than the provisions above. Like many administrative agencies in the federal government, the Commission was given the duty of issuing advisory opinions to regulatees, telling them how the law would be interpreted in a given, usually hypothetical, situation. (172) Such opinions are necessarily a kind of abstract review of the law: They are forward-looking determinations about whether particular activities or funds would violate either the FECA statute or the FEC's regulations pursuant to the Act. While it is typical of agencies to do this sort of work, it is unusual for their decisions in such matters to be subject to judicial review--under FECA, however, that is the case. A catchall provision in the accompanying Presidential Primary Matching Funds Act (enacted as part of the 1974 FECA) subjected any Commission action to judicial review. (173) This meant that regulatees would be able to seek virtually the same abstract, forward-looking legal determination from a federal court. And, although regulatees brought suits to do just that immediately after passage of the law, (174) subsequent revisions to FECA have never attempted to restrict court jurisdiction with respect to advisory opinions. (To the contrary, subsequent amendments to FECA established specific, sometimes relatively short, time periods during which the FEC must respond to advisory opinion requests, and the Agency's failure to act within those time frames will also give rise to a suit.)...

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