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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.

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.

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