July 28, 2014 SIGN IN | REGISTER

McGahn: Courts, Constitution Limit FEC’s Mission

Self-styled campaign finance “reformer” and media gadfly Norman Ornstein recently bestowed upon me an award — which he humbly calls an “Ornstein” — for not following my oath of office, supposedly evidenced by my refusal to “enforce any actions.” No support is offered, and refuting this is easy — just ask anyone who recently has been subjected to a Federal Election Commission audit or enforcement action or has paid a monetary penalty whether they think Ornstein is correct.

But that’s too obvious and ignores the real issue: What is the proper role for the FEC? Ornstein and his cohorts are offended that I am not enforcing the law as passed by Congress but instead as limited by the courts. Their half-cocked wisdom: Just ignore the Constitution and the courts. But contrary to this view, the FEC can only enforce the law to the extent permitted by the Constitution and the courts, regardless of what Congress might intend. This principle is as old as Marbury v. Madison. Were it otherwise, the president would have a line-item veto, and Members of Congress could be subject to term limits. And at the risk of being as dramatic as Ornstein, school systems across the country wouldn’t have had to integrate.

When I joined the FEC, I was serious in taking my oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” It was not to uphold the wishes of the reform lobby and their belief in the amorphous “spirit” of McCain-Feingold. But that is what Ornstein demands: to violate my oath by pursuing unfounded and unsupportable investigations of Americans who have banded together simply to speak or otherwise participate in political discourse.

The reality is that Ornstein and his reformer cohorts are experiencing the demise of their longed-for utopia and a rapid descent into utter irrelevancy. Following the passage of McCain-Feingold (much of which Ornstein is credited with having written) and McConnell v. FEC, Ornstein and the reformers were riding high — it looked as though their ideals might be realized. But then, when their ideals were applied to real people in real situations, the court said enough is enough, and their utopia collapsed under its own weight (as such impossibly idealistic visions tend to do).

Ornstein and his cohorts always fail to mention the government’s stunning string of losses before the courts (defeats due in part to the FEC’s unfortunate pastime of running roughshod over the protected constitutional rights of our citizens). Instead of acknowledging these losses, they believe the FEC ought to continue unencumbered by such reality.

Recall, Citizens United v. FEC was a simple case about whether a nonprofit association was “permitted” to distribute a documentary movie via video-on-demand. Reformers urged the commission to take a staunchly regulatory position (Ornstein himself filed a brief that claimed the movie could be banned). And let’s also recall: The government itself claimed it had the authority to ban books.

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