President Obama's FEC Pick Is Not the "Change We Need"

The nomination of John Sullivan by President Obama to a seat on the FEC is cause for concern. Mr. John Sullivan’s only known statements on campaign finance issues have been made to the FEC on behalf of the union that employs him. While lawyers are of course obligated to represent their clients, the gusto with which Mr. Sullivan has bashed important elements of McCain-Feingold and repeatedly taken radical deregulatory positions does not inspire confidence that he will have different views if confirmed to the Commission. More important is the question of what Mr. Sullivan’s nomination says about President Obama’s promises to change Washington and reform the FEC: certainly this nomination is a strange way to initiate such change. If the White House is serious about improving the FEC, it will need to fill the two other vacancies on the Commission with people who will shake it up, not fit right in to the status quo.

 

The Campaign Legal Center has long advocated the strengthening of campaign finance law enforcement through replacement of Commissioners who all-too-often express hostility toward the very laws they’re charged with enforcing with Commissioners who, instead, believe in the agency’s mission of enforcing the money-in-politics regulations that Congress has enacted. And lacking faith that any administration would truly bring the change that is needed, we have advocated a total restructuring of the agency by Congress.

 

But far from endorsing enforcement of Congress’ campaign finance regulations, President Obama’s nominee for the Commission, labor union lawyer John Sullivan, has over the years encouraged radical deregulation of campaign finance by the FEC. The fact that he has also worked for reform of the voting process is of little help, since that is the province of the Election Administration Commission, not the FEC.

 

In October 2007, for example, Sullivan filed comments in the FEC’s rulemaking proceeding to modify its “electioneering communication” regulations in the wake of the Supreme Court decision in Wisconsin Right to Life (WRTL)-urging the Commission to go far beyond the Court’s ruling by ceasing to enforce “electioneering communication” disclosure requirements not even challenged, let alone invalidated, in WRTL. Sullivan’s urging of deregulation in the post-WRTL rulemaking was so radical that not even the most visible, well-known opponents of campaign finance restrictions supported it. For example, while the adamantly deregulationist Center for Competitive Politics urged the Commission to wait for a court decision actually invalidating the disclosure requirements before ceasing to enforce them, Sullivan urged the Commission to cease enforcement of the disclosure requirements enacted by Congress and upheld by eight members of the Supreme Court in McConnell v. FEC. Fortunately, the Commission rejected Sullivan’s advice and properly confined its rulemaking to the issues actually litigated in WRTL.

 

Sullivan’s deregulatory approach to campaign finance law was also on display in 2006, when Sullivan filed comments in an FEC rulemaking on “coordinated communications.” The Commission was conducting the rulemaking as a result of the federal Circuit Court of Appeals decision in Shays v. FEC, in which the court criticized the Commission because it “offered no persuasive justification” for the time-frame utilized in its coordination rule and “the weak restraints [i.e., an ‘express advocacy’ test] applying outside of it.” The Circuit Court reasoned that the Supreme Court in McConnell had described the “express advocacy” test as “functionally meaningless” because it is so easily evaded and that, “by employing a ‘functionally meaningless’ standard ..., the FEC has in effect allowed a coordinated communication free-for-all for much of each election cycle.” Yet Sullivan, in his comments to the Commission, expressed “serious doubts about the validity of any [coordination] content standard that includes more than express advocacy and electioneering communications.” Unfortunately, the Commission heeded Sullivan’s advice and re-promulgated a coordination rule with the same flaw identified by the court-the rule relied on the “functionally meaningless” and easily evaded “express advocacy” standard. Consequently, the Commission was sued yet again-and yet again, the D.C. Circuit Court of Appeals struck down the Commission’s rule because it relied on the “express advocacy” standard. The court used even harsher language in its critique of the coordination rule second time round, noting that the rule “allows candidates to evade-almost completely-BCRA’s restrictions on the use of soft money.” The court further explained: “Thus, the FEC’s rule not only makes it eminently possible for soft money to be ‘used in connection with federal elections,’ but it also provides a clear roadmap for doing so, directly frustrating BCRA’s purpose.” (internal citation omitted) Alarmingly, the Commission has been under federal court order to rewrite this invalidated rule since 2007 and has not yet even initiated the rulemaking. So President Obama’s nominee to the Commission, if confirmed by the Senate, will play a critical role in rewriting the coordination rule for the third time since the 2002 passage of the McCain-Feingold law.