That the FEC often deadlocks is noteworthy but no longer newsworthy. How parties who are regulated by the FEC deal with this logjam, however, remains hotly debated and timely.
The prospect of 3-3 votes on advisory opinion requests, in particular, is often the subject of much handwringing. How should a party deal with a deadlock that results in no advisory opinion and no guidance, one way or the other? Should the party fail to take the proposed action? Should the prospect of a divided vote stand in the way of seeking an advisory opinion in the first place?
All but the most risk adverse parties should be comfortable treating the failure to obtain an advisory opinion where the vote is 3-3 as a license to go forward with the activity proposed in the advisory opinion request. In this context, a tie is not like kissing your cousin — it’s nearly as good as a win for the requestor. If the Commission deadlocks, the requestor can virtually rest assured that the conduct that it placed in issue in the advisory opinion will not be the subject of an enforcement proceeding at the FEC — at least not one that will muster four votes of Commissioners to find reason to believe that there has been a violation of the Act.
To be sure, some courts have effectively held to the contrary, ruling that a petitioner who obtains such a deadlock has standing to raise a substantive challenge to the relevant FEC rule because of the possibility of an enforcement action down the road. See Hispanic Leadership Fund, Inc. v. FEC, 897 F.Supp.2d 407, 423 (E.D. Va. 2012); Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995). The courts reached this decision despite that the plaintiffs in those cases could not demonstrate “actual or imminent, not conjectural or hypothetical,” legal injury through the possibility of a FEC enforcement action. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Instead, the courts found that the plaintiffs have standing based on the supposition that “[a]ny of the commissioners may change their minds or the composition of the FEC may change prior to the running of the statute of limitations.” See also Chamber of Commerce of U.S., 69 F.3d at 603 (“Nothing, however, prevents the Commission from enforcing its rule at any time with, perhaps, another change of mind of one of the Commissioners.”).
But these decisions are off the mark. They fail to take into account the basic practical reality that, even if a Commissioner changed his or her mind, or even if the composition of the Commission changed, basic notions of fairness would almost certainly stand in the way of a Commission finding that the party submitting the advisory opinion request violated the Act.