The Non-Expert Agency : Using the SEC to Regulate Partisan Politics

Over the past 15 years advocates of campaign finance reform, frustrated by the structure and design of the Federal Election Commission, have attempted to offload the duties of campaign finance regulation to other federal agencies, most notably the Internal Revenue Service but also the Federal Communications Commission and, most recently, the Securities Exchange Commission.We respond specifically to Professors Lucian A. Bebchuk & Robert J. Jackson, Jr., Shining Light on Corporate Political Spending, 101 Geo. L. J. 923 (2013), who urge the SEC to adopt compulsory disclosure rules to govern corporate political activity. We argue that whatever the theoretical merits of this position, the reality is that the current pressure on the SEC to take adopt new compulsory disclosure laws is a direct result of a desire to use the SEC to regulate not corporate governance or the world of investment and trading, but campaign finance. As a result, we suggest that any rules adopted are likely to be ill-advised and co-opted in the enforcement process. At the core of the theory of the independent agency is that it will develop a unique technical competence and will operate within that sphere of expertise. Pressure on the SEC (or other agencies) to regulate campaign finance takes these agencies out of their area of professional expertise and competence, and is thus likely to result in bad law, damage to institutional reputation, and a distraction from the agency's core mission