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 (more…)
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