FEC not to blame for election law

Recently, several so-called campaign finance reform groups and their media allies have stepped up the ferocity of their attacks on the Federal Election Commission’s Republican members (including me), alleging we refuse to enforce federal campaign finance law and have turned the FEC into a “rogue” agency. These charges are completely off-base.

First, this criticism is based on the false and offensive premise that I and my colleagues cynically ignore what the law requires to reach results that accord with our ideological preferences. As commissioners, we take very seriously the responsibility to faithfully interpret and enforce the law, which includes grappling not only with relevant statutes and regulations but also the court decisions interpreting them. Our critics’ real gripe is not that we refuse to enforce the law but that we disagree with their view of what the law is. 

And we have strong reasons for that disagreement. In recent years, several of our critics’ speech-restrictive policies and interpretations have fared poorly with the Supreme Court and other lower courts, which have nullified significant portions of campaign finance law for violating the First Amendment. Though our critics may wish to minimize these opinions, we cannot. After all, the courts, not the “reformers,” are the final word on the law’s meaning. In enforcing the law, our actions have been firmly grounded on those cases. 

Instead of acknowledging the extent to which the courts have altered the legal landscape, our critics launch ad hominem attacks and misleading arguments against us, underscoring an unfortunate but persistent tendency of these “reformers” and their allies: labeling those who disagree with them as cynical and corrupt. Considering their goals include elevating the tone of political discourse, the irony is hard to miss.

The flimsiness of these denunciations is demonstrated by their examples of our supposed obstructionism. For instance, these groups and a recent New York Times editorial disparaged our handling of two audits, claiming we wrongly permitted two state parties to use soft money in violation of FEC rules without, in the Times’ words, “even a slap on the wrist.”

A closer look at the audits reveals how faulty these criticisms are. The entire commission agreed on the bulk of the first audit, which involved reporting errors and receiving prohibited contributions by the Kansas Republican Party. After FEC auditors identified these problems, the party amended its reports and refunded the contributions. The only question dividing the commission was whether the party had to use hard money to pay travel-related costs for attending the 2008 Republican Convention. As the FEC has previously acknowledged, none of our regulations explicitly require this. Furthermore, during national conventions, state party delegates typically conduct business unrelated to federal elections. Putting aside whether FEC rules should cover such expenses, announcing a new rule in an audit and applying it retroactively would be inappropriate and grossly unfair. 

As for the other audit, involving a Georgia Democratic Party committee, the commission unanimously agreed on everything except a technical reporting issue regarding an escrow account. The committee established the account because its payroll vendor could not process payrolls from multiple accounts. Contrary to the New York Times’s lament that we had allowed the committee to improperly pay salaries from a “forbidden soft money account,” FEC auditors confirmed that “non-federal funds were not used to subsidize federal payroll.” Significantly, the majority of commissioners determined the party did not violate the law. 

Clearly, our decisions had strong legal foundations. That our critics rely on these as examples of “rogue” decisions shows how slight are the straws at which they grasp.

The “reformers” and their allies are ideologically committed to expanding the regulation of political speech. Thus, before we were commissioners, they encouraged and fully supported the FEC when it determined the law banned Citizens United from showing a documentary film critical of a federal candidate on pay-per-view cable. The result of this sweeping view of the law was that the Supreme Court struck down as unconstitutional a large part of that law. Which highlights this ironic fact: the so-called reformers’ insistence on broad, speech-burdening enforcement of campaign finance law has left the FEC with a lot less law to enforce.

Petersen is a commissioner with the Federal Election Commission, and served as FEC chairman in 2010.