Real agenda of reformists is ousting FEC’s Republicans

Well-known campaign reform advocates have been plotting to change the makeup of the Federal Election Commission.

The FEC has been busy enforcing the law — meting out nearly $2 million in fines since regaining its full complement of commissioners in July 2008, closing and making public over 350 cases, issuing 26 advisory opinions, concluding three important rulemakings, and holding an unprecedented set of public hearings where commissioners obtained unprecedented public input to on how to make the FEC’s internal procedures fairer, more public and more transparent.

The Federal Election Campaign Act is not an easy law to enforce. The Supreme Court has invalidated or partially invalidated two provisions of the McCain-Feingold law (BCRA) enacted in 2002 in the past two years, and the high court appears poised to invalidate the central “electioneering communication” provision of part II of BCRA in the Citizens United case. Two federal courts substantially reduced or voided penalties in two FEC civil enforcement cases this year. Further, the Federal Election Campaign Act is not the only target of judicial action: Campaign finance laws of five states modeled after key BCRA or FECA provisions have been invalidated by federal appellate or state supreme courts — including laws enacted by North Carolina, West Virginia, Kentucky, Louisiana and Iowa.

Moreover, there is a bona fide controversy among FEC commissioners about some enforcement cases pressed on them by its legal counsel. The FEC’s “express advocacy” regulation around which much of the controversy has swirled has been found unconstitutional by all three federal courts that have been asked to review it, yet the FEC’s general counsel persists in presenting cases for enforcement predicated on that regulation. Despite the howls from reform groups, the FEC’s six commissioners have split on enforcement matters only 22 times in over 220 cases. Hardly a dysfunctional agency!

What’s the hue and cry about? Reformers want the agency to enforce the law as they would like it to be — not as Congress wrote it. While the commission has the duty to interpret and enforce the law as it is written, it lacks power to “fill in the blanks” to enforce what some would like it to be. The concerted reform groups’ and The New York Times’s ill-disguised objective is to pressure President Obama to oust Republican commissioners who have sought to enforce the law as it is written (recently, the Times’s editorial page predictably echoed the reformists’ cry).

Republican commissioners applied the law as they read it — refusing to support proposed FEC enforcement actions against George Soros and the Democratic Congressional Campaign Committee. This evenhanded approach has been blind to whose party’s ox the FEC staff wants to gore!