Under federal law, no more than three members of the commission may belong to the same political party. Four votes are required to issue an advisory opinion, pursue an investigation or agree on a punishment. Veterans of the commission say that for many years the arrangement was effective in encouraging commissioners to apply rules consistently to both parties.
But deadlocks have become far more common since 2008, when three new Republican commissioners joined the commission.
According to a study by Craig Holman, a lobbyist at Public Citizen, the commission has not only taken up far fewer advisory requests and issued fewer regulations than it did before 2008, it has also split votes on a greater proportion of the matters it does consider.
“The Republicans on the commission realized they can render the commission toothless,” said Mr. Holman, whose organization favors tougher disclosure rules and is suing the commission for what it says is a failure to enforce existing disclosure rules against Crossroads Grassroots Policy Strategies, a leading Republican outside group.
Mr. Goodman acknowledged that candidates and outside groups were operating in a less restrictive regulatory environment than five years ago. But he argued that the shift reflected deregulatory court rulings, such as Citizens United, and a proper restraint in applying limits on political speech.
Mr. Goodman also said “If there aren’t four votes to support a regulatory position, it’s not the position of the F.E.C.”
So, the three Republican and three Democratic appointees of the Federal Election Commission had reached yet another deadlock: They would issue no advisory opinion on whether the Conservative Action Fund could accept contributions of Bitcoin, the online currency created to be untraceable.
The Republican commissioner, Lee E. Goodman, suggested that the group could essentially do as it pleased. The fund “has a clear statutory right to give and receive in-kind contributions regardless of what we say here today,” Mr. Goodman said.
The case was just one of the more than 200 times in the past six years that the commission has split votes, reflecting a deep ideological divide over how aggressively to regulate money in politics that mirrors the partisan gridlock in Congress.
But instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.
Campaign lawyers of both parties say the deadlocks have profoundly, if informally, affected the rules governing campaigns, particularly on questions involving whether political nonprofit groups must disclose their finances and the threshold for starting an investigation.
The splits are consistent enough in spelling out the likely direction of enforcement, they say, that they now advise clients that a 3-to-3 split comes close to official commission policy.
“If you’ve got a client who is not as risk-averse, then you can sit down with them and say, ‘Here’s the situation, you have three commissioners who say this is lawful, and that is something you can rely on between now and November for your campaign strategy,’ ” said Michael E. Toner, a Republican election lawyer and former commissioner.
Some election lawyers have even turned the deadlocks into a kind of marketing spiel. As Anthony Herman, a lawyer at Covington & Burling, put it in an article on the firm’s website: “The F.E.C.: Where a ‘Tie’ Can Be (Almost) a ‘Win.’ ”
In an interview, Mr. Goodman, the commission chairman, described the guiding principle as one of deference to First Amendment political speech. In case of a deadlock, he said, the “tie goes to the speaker.”
F.E.C. deadlocks have transformed the regulatory system intended to ensure that outside groups operate independently of the candidates they support — the distinction that, under the Supreme Court’s Citizens United decision, permits them to raise and spend unlimited amounts of money.
Twice the commission has reached an impasse on rules affecting whether a “super PAC” can borrow video prepared by a candidate for his or her own ads. Candidates of both parties now routinely make available so-called B-roll video, ensuring that super PAC ads look and feel similar to the candidate’s own ads.
In a January hearing on text-message advertising, Caroline C. Hunter, one of the Republican commissioners, told the lawyer for a left-leaning digital media firm that his client need not worry if the commission declined to bless its proposed approach to disclosure.
“It looks like this is going to go down 3 to 3,” Ms. Hunter said. “And so there’s not four votes to say, ‘You can’t do this.’ ”
The deadlocks appear to have had a particular impact on enforcement cases. In a series of deadlocks over proposed fines or settlements, Republican commissioners have in effect created a new, higher standard for investigations, arguing that direct evidence of a violation must already exist before the commission staff can even begin investigating a complaint.
A commission deadlock on a complaint can be challenged in court, but under court rulings dating to the early 1990s, federal judges in such cases have deferred to the legal interpretation of the three commissioners voting to block an investigation.
“The fact that there is this deference given to what is an obstacle to disclosure ultimately means that there is no meaningful judicial remedy when the F.E.C. does not come to a decision,” said Ann M. Ravel, a Democrat who joined the commission last year.
Even apparent agreements among the commissioners can be illusory. In May, in a separate request involving Bitcoin, the commissioners unanimously agreed that a fledgling group called Make Your Laws could accept small Bitcoin contributions of no more than $100. But in a separate statement, Mr. Goodman suggested that potential Bitcoins donors should not worry about the new policy.
The Commission is made up of six members, who are appointed by the President of the United States and confirmed by the United States Senate. Each member serves a six-year term, and two seats are subject to appointment every two years.
But it does not say that a commissioner has to be a member of a party. So we need a President and a Senate that will approve two independents.
NYC Wins When Everyone Can Vote!
Michael H. Drucker
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