Faced with such unyielding extremism, the court did the only thing it could: It ruled in favor of liberty, and against the government. And they did so in a way that was not limited to a pay-per-view movie; instead, the court’s broad pronouncements limit the ability of the government to regulate in the area of politics generally.
Let’s be clear here: The FEC has been on the losing end of a series of recent challenges to its constitutional authority. The FEC lost the Wisconsin Right to Life challenge. It lost the Davis challenge. And it utterly fell on its face in losing Citizens United. In each case, the Supreme Court limited the FEC’s jurisdiction and gave it clear instructions not to reach out and zealously enforce more but to act with solemn respect and caution for the First Amendment rights of our citizens.
The court’s criticism of the old ways of the FEC was direct, pointed and unambiguous. And the wisdom of the Supreme Court’s rulings is simple: An overzealous FEC is bound to trample speech deemed integral to a healthy civil society. Or as Chief Justice John Roberts put it, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” As an FEC commissioner, I am bound by my oath to follow controlling precedent of the Supreme Court — including its logic — regardless of whether Ornstein likes certain case law.
So where does this leave Ornstein and his cohorts? On the wrong side of the Constitution. Not only have the courts declared much of their reform dogma to be illegitimate, their lobbyists have failed to make any headway in Congress — even their crown jewel of public financing is in jeopardy. And no wonder. Their policy preferences are simply outside the mainstream, and they seek to squelch the voices of everyday Americans in the name of electoral purity.
As a direct consequence of this single-minded pursuit of a purified electoral utopia, Ornstein and other reformers have become irrelevant. Instead of participating meaningfully in the policy debate, they have turned to childish name-calling in an effort to energize others to take up their ultimately futile crusade of co-opting the FEC.
As for me, I will continue to follow my oath in protecting the Constitution — a document that jealously guards the free speech rights of every person in the republic.
Don McGahn is a member of the Federal Election Commission and served as its chairman in 2008.