Commentary

Next Stop for McCainiacs: The FEC

This article was first published in National Review Online, May 13, 2002.

The campaign finance story last broke off in the Oval Office as President Bush signed McCain-Feingold in the presence of his dog Spot. John McCain and his allies were not amused. If you had spent tens of millions of foundation dollars to rid Washington of the influence of money, you too might think you had a right to a White House fest recognizing your moral superiority and all around service to the republic. Denied their party before a fawning media, McCain and the regulatory crowd are back on the warpath demanding an overhaul of the Federal Election Commission (FEC).

The Common Causers have complained for some time about the FEC. They say tie votes among the six commissioners preclude tough enforcement of federal election law. They say the commissioners lack the will to go against partisan interests. McCain and company want an FEC that looks and acts like the FBI, headed by a Hoover appointed by the president. Democrats in Congress may doubt the wisdom of G-men led by a Republican appointee looking into their last campaign.

The FEC does have problems, just not the ones cited by McCain and company. Votes end in ties less than three percent of the time. It’s true that the commission can’t march people off to jail for speaking out during elections. But the design of the FEC reflects our larger disagreements about the partisan and constitutional implications of regulating political campaigns as well as legitimate differences over interpretation of existing law. In a democracy the FEC can hardly be faulted for not following the wishes of a small band of zealots otherwise known as “the reform community.”

The real shortcomings of the FEC lie elsewhere. Defendants before the commission have few due process safeguards. When a complaint comes before the FEC, its general counsel makes the case against an alleged lawbreaker who has no right to appear before the commission. The general counsel provides the commission with a report that summarizes and criticizes the legal arguments of the accused and is present to answer questions from the commissioners. These reports are not given to the accused even though they may contain new arguments or information.

The FEC also sends out discovery subpoenas on the recommendation of its general counsel. To contest a subpoena, a citizen must appeal to the FEC itself which turns the matter over to its office of general counsel. Need I mention that the commission rarely grants motions to quash its own subpoenas? Beyond that, the commission often will not provide the accused with documents that might aid his defense. How could all this accord with the rule of law? You wouldn’t know it from the rhetoric, but the FEC has hardly been a pussycat in enforcing federal restrictions on campaign finance. In fact, like most burgeoning bureaucratic empires, the FEC has continually tried to extend its regulatory authority.

Consider issue advocacy. In Buckley v. Valeo, the Supreme Court said that the feds could only regulate ads that expressly advocated the election or defeat of a candidate. All other advocacy about political issues is protected by the First Amendment.

The FEC has tried through most of its history to expand the meaning of “express advocacy” beyond explicit words advocating the election or defeat of a candidate. Time and again courts have rejected these grabs for more power over political speech. In 1997 a federal court struck down an FEC regulation redefining express advocacy concluding that the commission’s argument that “no words of advocacy are necessary to expressly advocate the election of a candidate” could not have been offered in good faith. Far from weak, the FEC’s stance on express advocacy has defied judicial authority and tends towards lawlessness.

The FEC has attacked political speech in other ways. The feds can constitutionally regulate “political committees.” Some on the FEC argue that spending on issue advocacy, a protected freedom, makes a group into a political committee and thus subject to regulation. Not surprisingly all these aggressive attacks have chilled political activities at the grassroots.

In battles over campaign finance reality almost always belies the rhetoric. So it is with the FEC. Far from being a weak enforcer of the law, the FEC has chilled political speech by constantly reaching for more power over our elections. The last thing we need is a stronger bureaucracy dedicated to controlling and intimidating Americans trying to exercise their constitutional rights.

John Samples is director of the Center for Representative Government at the Cato Institute.