Beyond Repair: FEC Reform and Deadlock Deference

Democracy by the People (Cambridge University Press), Forthcoming

Ohio State Public Law Working Paper No. 440

39 Pages Posted: 29 Mar 2018

See all articles by Daniel P. Tokaji

Daniel P. Tokaji

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: March 28, 2018

Abstract

Composed of six commissioners, three aligned with each major party, the Federal Election Commission (“FEC”) consistently stalemates on critical questions of campaign finance law. Party-line deadlocks have become increasingly common over the past decade, reflecting the larger phenomenon of partisan polarization that infects the American political system. FEC critics have thus proposed replacing it with an odd-numbered body. The problem with this proposal is that it would allow the dominant political party to enforce campaign finance laws in a way that systematically disadvantages its chief competitor. There is a better solution: give tie breaking authority to the federal courts, which now defer to FEC non-enforcement decisions even when they result from a party-line split. This chapter argues that this practice of “deadlock deference” should be abandoned because it is wrong as a matter of law and harmful as a matter of policy. Abandoning deadlock deference would not only conform to recent Supreme Court precedent regarding Chevron deference, but also help remedy the worsening problem of party-line stalemates on the FEC. Because Article III judges rather than partisan commissioners would break the tie, ending deadlock deference would prevent one party from manipulating campaign finance law to the disadvantage of the other.

Keywords: Campaign Finance, Election Law, Federal Election Commission, FEC, Chevron Deference, Administrative Law

JEL Classification: K00, K1, K2, K41, K42

Suggested Citation

Tokaji, Daniel P., Beyond Repair: FEC Reform and Deadlock Deference (March 28, 2018). Democracy by the People (Cambridge University Press), Forthcoming; Ohio State Public Law Working Paper No. 440. Available at SSRN: https://ssrn.com/abstract=3151788 or http://dx.doi.org/10.2139/ssrn.3151788

Daniel P. Tokaji (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
91
rank
277,113
Abstract Views
678
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information