Minnesota Lawyer
The consensus among campaign finance watchers was that, two years ago, Cynthia Bauerly had grown enormously frustrated with her job. Certainly, the evidence suggests that Bauerly left the Federal Elections Commission at the first opportunity.
On Jan. 4, 2013, Bauerly, 43, resigned as commissioner at the Federal Election Commission, where recently she had served as chair. Ten days later, the Minnesota Department of Employment and Economic Development (DEED) announced it was importing her to be its deputy commissioner of workforce development. She has since moved over to the No. 2 job at the Department of Revenue (DOR).
The return to Minnesota was a homecoming for the Sauk Rapids native, whose super-charged résumé includes local stints as both an intellectual property attorney at Minneapolis-based Fredrikson & Byron and as a volunteer adviser during Amy Klobuchar’s first U.S. Senate run.
Minnesota is home, Bauerly says, and she had always planned to return. She purchased a home in Minneapolis a full year before resigning from the FEC, she says. “I stayed to finish out some time at the FEC to get through the [2012] election,” she says. “Leaving in the middle of an election would be fairly disruptive.”
Be that as it may, observers tend to agree that partisanship at the FEC — a six-member body virtually designed for deadlock — had reached a fever pitch by the time Bauerly left.
On the day she resigned, U.S. Rep. Robert Brady of Pennsylvania, the ranking Democrat on the House Administration committee, issued a statement lauding her service to the FEC and noting the thanklessness of her task there.
“As chair of the FEC,” Brady wrote, “Commissioner Bauerly fought hard to break the partisan gridlock that has for too long paralyzed the commission. … She was a force for good in an otherwise dysfunctional agency.”
Rick Hasen, chancellor and professor of law and political science at the University of California at Irvine, specializes in federal election law. The FEC, he points out, may contain no more than three members from either major political party, and during Bauerly’s tenure the panel had two Democrats, one independent and three Republicans.
GOP members then included Donald McGahn, who Hasen calls “a flamethrower,” ideologically committed to loosening campaign finance restrictions on wealthy contributors.
“He saw his job as coming in and throwing up as many roadblocks to regulation as possible,” Hasen says. “It got very personal, at least from what you could publicly see between McGahn and [Democratic FEC commissioner Ellen] Weintraub.”
Bauerly was more reserved and less inclined to engage in open warfare, he says. But she was as committed as Weintraub to transparency and enforcement, Hasen says. And she was equally frustrated in her efforts.
If a chronically deadlocked commission wasn’t enough, Hasen says that during Bauerly’s tenure the federal appellate and U.S. Supreme courts issued a series of rulings — the most infamous being 2010’s Citizens United decision — that gutted campaign finance restrictions dating back to the Watergate era.
Hasen was surprised that Bauerly, a former legislative director to powerful U.S. Sen. Chuck Schumer, D-NY, hit the reset button and took a job as lieutenant to a midwestern state agency commissioner. Partly he thinks she did it because she could. Bauerly never previously worked full-time as an election lawyer, Hasen says, and that may have liberated her from having to remain in Washington and continue on that track.
What was no surprise to Hasen is that she chose to move on. “The idea that she would pack up and leave Washington and get as far from that as possible, I think, is not only understandable but probably necessary for her sanity,” he says.
A big job
Bauerly’s sanity seems well-preserved. She comes across as tranquil, composed and smart. She has an acuity for delivering spoken sentences that are both carefully considered and grammatically well-structured, rarely interrupting herself with time-buying “ahs” or “ums.”
Bauerly served at DEED a mere
18 months before moving on once more. In April, she took over the deputy DOR commissioner job vacated when Matt Massman was tapped as Gov. Mark Dayton’s deputy chief of staff.
She is an excellent fit at DOR, according to DOR Commissioner Myron Frans, who answered several questions via email over the July 4 holiday. Asked what makes her well-suited to the job, Frans points to her previous work as a lawyer and her brief stint at DEED. He does not mention the FEC.
“My first goal for DOR was to find a deputy commissioner who had experience in managing a significant and complex agency,” Frans says. “Cynthia’s experience managing DEED’s varied workforce and wide array of programs was exactly on point for what we were looking for.”
Frans says he needed a candidate who could help manage DOR’s “legal challenges,” which he did not enumerate. “Cynthia’s legal background and her experience as a lawyer was a big selling point for us,” he says.
It may be less illustrious than being an FEC commissioner, but Bauerly’s DOR gig is a big, important job. Division directors all report directly to her. She is responsible for everything from managing the agency’s relationship with information technology agency MN.IT to its payroll, local government aid distributions, and tax compliance. She also figures to be a familiar face at the Capitol next legislative session, helping represent DOR’s interests.
Bauerly says she is happy to have found a home at Revenue. “I like it a lot,” Bauerly says. “I feel very fortunate.”
David Schultz, a Hamline University political science professor, noted that a perpetually gridlocked Congress has left state capitals the places where most of the political action is. Even so, he added, Bauerly’s current role in Minnesota’s government is a good deal less glamorous than being an FEC chair and commissioner.
“The way the calculus is put together tells us something about how frustrating or how powerless she really felt in that position,” Schultz says. “And how by comparison, this just looked like a better career move.”
Bauerly doesn’t compare her old and new roles, noting only that, “Not everyone has described it as a step down.”
Perpetual gridlock
Bauerly does speak with a certain degree of cautious frankness about her FEC days. President George W. Bush appointed her after a Democratic FEC seat came open, and the Senate unanimously approved the appointment. It might have been the last bit of smooth sailing she enjoyed at the commission.
Bauerly thinks the FEC was formed as a six-member panel in the early 1970s in order to force commissioners to compromise. That approach actually worked through much of the commission’s history, she says.
“I think if you look back, there were many more opportunities — and many more opportunities taken — to find consensus by prior sets of commissioners,” Bauerly says. In recent years, however, she says that willingness has essentially vanished.
“Having known a number of the other commissioners who have held Republican seats,” she says, “I think it is fair to say that some of them were much more interested in finding compromise than some of the commissioners that I served with.”
She agrees that judicial opinions rendered during her tenure supported Republican commissioners’ contentions that campaign finance limits represent a roadblock to free speech. Tacit support for conservative commissioners by the courts made compromise even more difficult to achieve, she says.
Citizens United is only the most famous example, Bauerly says; a D.C. Circuit Court decision, SpeechNow.org v. FEC, was just as damaging. Passed down in March 2010, it held that the 1971 Federal Election Campaign Act’s limits on independent expenditures violate the Constitution’s First Amendment.
“Particularly if you are willing to read those decisions together in ways that it was unclear, to me at least, that the courts would have intended, you can get to some pretty broad approaches to not requiring disclosure,” Bauerly says.
The FEC’s near-constant 3-3 division would, of course, be rectified if the panel were expanded by one member. UC Irvine’s Hasen says there is no move afoot to do that, nor to do away with the commission. But because it has effectively ground to a halt, the FEC is well on its way to irrelevancy, he says.
“It’s the dilemma,” Bauerly says. “I have noted that if every industry could choose its regulator, they might choose a 3-3 sort of setup.”
Safe at home
The bottom line, for this daughter of a Sauk Rapids construction company co-owner, is that voters should be able to find out know who funds and supports the candidates on their election ballots.
“All of that goes to the credibility of the system,” Bauerly says. “If people don’t believe that the system is credible, then how will they ultimately believe that the government that is being administered and run by the people that they have elected is credible and has their trust?”
But in the end, that’s really not Bauerly’s problem anymore. Frans says that she is now busy directing her enthusiasm and skills toward supporting DOR’s employees and the state’s taxpayers.
“[Bauerly] is already engaged in our new plain-language initiative with taxpayers,” Frans says. “I am confident that the agency will be well served by Cynthia’s tenure and we were very fortunate to attract her to DOR.”
She has changed jobs twice in the past two years, but Bauerly says she plans to remain at DOR. It is true that this job, too, might be short-term. Deputy and assistant commissioners often are seen by incoming administrations as political animals belonging to their predecessors. If Dayton were not re-elected, she likely would get replaced.
Should that happen, Bauerly thinks she would look for some other role in Minnesota, either in government or the nonprofit world. “But I’m not looking,” she says.
“Look, I have been incredibly fortunate in my career to have incredible opportunities to learn and to participate and to hopefully contribute,” Bauerly says. “And I have always been a Minnesotan, even when I was working for New Yorkers. So I feel really fortunate. I will serve as long as someone thinks that is valuable for me to serve.”
THE BAUERLY FILE
Name: Cynthia Bauerly
Age: 43
Job: Deputy commissioner, Department of Revenue; former chair, Federal Elections Commission
Grew up in: Sauk Rapids, Minn.
Lives in: Minneapolis
Education: St. Cloud Cathedral High School; B.A., English writing and Russian, Concordia College; M.P.A., Indian University at Bloomington; J.D., Indiana University at Bloomington
Family: Engaged to be married; prefers to keep partner’s name private. Her father was co-owner, along with several siblings, of Bauerly Bros. Construction.
Hobbies/interests: “I like to read a lot — the English major is still alive and well in me. I read as much fiction when I can. Lately I’ve been reading a lot of management books — there is always new thinking about some of those wonky issues. Recently, I picked up Sonja Sotomayor’s memoir [‘My Beloved World’].”
Sterling résumé: Former attorney for Washington, D.C.-based Jones Day and Minneapolis-based Fredrikson & Byron. Former judiciary and rules committee staffer for U.S. Sen. Charles Schumer, D-NY; later served as Schumer’s legislative director. As rules committee staffer, she worked on the House-Senate conference committee that passed 2002’s Help America Vote Act, which required state and local election officials to upgrade election procedures.
