Dan Tokaji has posted this draft on SSRN (forthcoming, Democracy by the People). Here is the 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.