Don McGahn has made his mark on the Federal Election Commission, and the recent Boston Globe account tells the story in familiar terms: he was dedicated to the evisceration of the campaign finance laws, he could count on the support of his Republican colleagues, and he did not go about this business with a soft touch. Commissioners now decline to reach across the aisle except to swat at one other, leaving two senior members to argue over the question of which of the them refused to answer the other’s phone calls. The agency’s operations are defined by dysfunction, its atmosphere by disharmony. As the Globe dates these developments, the year 2008, when McGahn came to the FEC, is the turning point.

To accept that this is an unattractive portrait of the FEC—that this is not a model of constructive regulatory exertion even on difficult issues—is not to say that the picture is complete. The FEC has found the going rough for years, as the Globe noted: “stalled from the start,” in the words of an early Common Cause critique. If what was once a stall has developed into flaming breakdown, the explanation must rest on more than the obduracy since 2008 of Don McGahn and his colleagues. The Globe makes a light pass on other factors but they remain in the background, diminished and incomplete.

Any more complete account of how the FEC came to this angry and unproductive juncture would have to look to the broader circumstances in which McGahn and his current colleagues took their posts at the FEC. The times may not have made Don McGahn, but in his party, he is a man of his times.

The Republican Party, the FECA and McCain-Feingold

Largely on the strength of a comment from former Republican Representative Bill Frenzel, the Globe suggests that the establishment of the FEC drew Republican support. One should not put too much stock in the significance of Republican votes for an independent enforcement agency in 1974 and 1976. The Party threw its lot in with an FEC to counter calls for more aggressive regulation, and in particular public financing. More enforcement, they contended, would obviate the need for a more intrusive federal government role. See, e.g. Remarks of Senator Dole, Congressional Record, April 10, 1974, at S5650. The Republicans were willing to enforce, which is quite different from readiness to actively enforce. But it is true that the Commissioners from the Republican side first came to the agency from a legislative debate in which the party had aligned itself with the proposition that somehow the agency could sensibly enforce the law without trampling on constitutional rights.

So the Republicans and Democrats were positioned to work together to bring about a workable program of enforcement. This openness to collaboration, while not always dependable, nonetheless went on for a while. In 1990, the Senate Majority and Minority Leaders, George Mitchell and Bob Dole, commissioned a bipartisan study of possible reforms to enhance the effectiveness of the campaign finance laws and their enforcement by the Commission. Campaign Finance Reform: A Report to the Majority Leader and Minority Leader, United States Senate (March 6, 1990). Nothing came of it, but it was then possible to imagine, as today it is not, that the two parties could find “common ground” on campaign finance regulation. A Reid-McConnell (or Pelosi-Boehner) Commission to consider campaign finance reform seems more than a little unlikely. And for a number reasons, including fairly obviously political ones, the GOP was led by its objection to President Clinton’s re-election to express sympathy with reforms aimed at the growth of soft money. See Final Report, Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election, United States Senate Committee on Governmental Affairs, Senate Rept 105-167 (1998).

By the year 2000, a hardening of the GOP’s position against the law was perceptible, but the tireless Republican opposition now on display did not take flight until the enactment of McCain-Feingold. On one view, the Republicans seized the opportunity presented by the new law—as one could say that the Supreme Court has done—to attack the entire campaign finance regulatory enterprise. Or it might be said that McCain-Feingold was deeply troubling to them on its own terms, establishing for the first time, for example, restrictions certain types of corporate and union financed pre-election advertising that referred to elected officials who were also candidates. The Republican response may have been a blend of both views: critics may have concluded that if a statute like McCain-Feingold was necessary to enforce the 1974 reforms, it spoke volumes about the inexorable, dangerous inner logic of the campaign finance laws. The new reforms would have to be resisted, but, in the GOP view, the fight was necessarily a wider one against the Watergate reform legacy.

One simple measure of the change is the Republican voting history of reform, focused on the contrast between the 1970s FECA votes and the vote on McCain-Feingold. The 1974 amendments passed with overwhelming bipartisan support: the House Conference Report passed by a vote of 365 to 21, and in the Senate, the vote was 60 to 16. The tally in 1976, when the FECA was amended in the wake of Buckley v. Valeo, was similar: 62-29 in the Senate and 291 to 81 in the House. The vote on McCain-Feingold was an entirely different story. Over 80% of the Republican caucus voted against the bill in the House, on a 240-189 tally, and on April 2, 2001, the Senate passed the bill 59-41.

Republicans could see, and would have to have been encouraged by, the same divide opening up on the Supreme Court. The McConnell case, upholding McCain-Feingold, was decided by a bitter 5-4, with Justice Scalia opening his dissent with the announcement that “this is a sad day for the freedom of speech.” 540 U.S. 93, 248 (2010) (Scalia, J., dissenting). So by the conclusion of the first round of battles over McCain-Feingold, there would have been no reason to assume that the conflict would end; and there was every reason to believe that the final votes would merely usher in the next phase of opposition in the Courts and before the FEC.

Change in the Terms of the Conflict

In the period leading up to and through the strife over McCain-Feingold, a change in the terms of the debate took place. The question for GOP critics was rarely how enforcement of the FECA could be made to work, but rather how it could proceed on any issue of consequence without unacceptable costs to constitutional rights. In making this case, reform critics could draw on freshly assertive scholarship and other advocacy. Bradley Smith published Unfree Speech: the Folly of Campaign Finance Reform, in 2001, and five years later, in 2006, John Samples published The Fallacy of Campaign Finance Reform. The Center for Competitive Politics was founded in 2005 to advance the case against the statutory and regulatory encroachments on its vision of free speech and assembly—a vision captured on its website by highlighting the First Amendment command that “Congress shall make no law” abridging free speech and assembly guarantees.

The public debate, always contentious, has come to feature increased intransigence and acid-laced rhetoric. Reformers have attacked the campaign finance reform critics for aiding and abetting corruption; the critics have responded that the reformers were assaulting First Amendment rights.

Recent examples adequately capture the trend and the tone. So the GOP Commissioners have been charged with dereliction of duty and going “rogue” as they undermine meaningful enforcement of the law, Letter to the President from Eight Reform Organizations et al (March 15, 2011), and those in their party leadership encouraging them have been engaged in “political obstruction of justice.” Democracy 21, White House Move Yesterday to Rig Enforcement Decision (May 7, 2008). The other side has answered in kind: reformers “had wasted their lives” on unconstitutional invasions of First Amendment rights, Ryan J. Reilly, GOP FEC Commissioner to Campaign Reformers: You’ve Wasted Your Life (May 20, 2011),
and now they were looking down their noses at public they were supposedly trying to protect. “Well, who are the goddamn reformers to say this?! Who are they to decide this for Joe Blow out here?” has snapped Jim Bopp in one memorable comment. James Bennett, The New Price of American Politics (September 19, 2012). The space in this exchange for serious discussion of the future of the campaign finance law has been squeezed to the vanishing point.

The Court and the FEC

As a result of the Court’s recent actions—striking down portions of McCain-Feingold, opening up corporate independent electioneering, and narrowing the scope of government authority—it is well appreciated that the Commission’s GOP members have the wind at their backs. They can argue, and they have, that the Court has demanded attention to the constitutional consequences of regulatory action and that their oaths compel them to act accordingly. Beyond even the developments in formal doctrine, the Court has exhibited considerable hostility to the day to day mechanics of FEC enforcement. The GOP Commissioners have surely paid attention to that, too.

Even before Citizens United was decided, Justice Roberts, writing for the Court in Wisconsin Right to Life, suggested that regulation in the field generates constitutional risks in at least three ways: complexity in the construction of legal standards (the problem of the “the open-ended rough-and-tumble of factors”); the chilling of speech through the threat of litigation; and the failure to resolve doubts or close cases in favor of speech (“the benefit of the doubt [must go] to speech, not censorship”). Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469, 482.

The theme of the regulator as censor shows up in even more starkly expressed terms in Justice Kennedy opinion in Citizens United. The FEC’s very “business is to censor,” he declares, and he likens the work of the agency to the product of the licensing laws of 16th- and 17th-century England. His remarkable language repays attention:

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. [citations omitted].

And this:

Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11–factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.

558 U.S. 310, 335, 336 (2010).

Don McGahn might have said what Justice Kennedy has written—he probably has—and he and his fellow Commissioners have certainly read it.

The Commission, the Staff and Criminal Enforcement

The FEC and its staff, particularly the Office of General Counsel, has always undergone their trials, and the flap now over the standards for OGC investigation and DOJ referral is an example, though certainly one of the more significant ones. The tension between OGC and the Republican side is especially predictable, and it is not new. The OGC as a unit of professional lawyers committed to ordinary-course enforcement, to having the FEC function like a “normal agency,” is sure to encounter resistance from Commissioners who believe that the enforcement of campaign finance rules is anything but ordinary.

Issues involving criminal jurisdiction are also in this context certain to stir up conflict. The “criminalization of politics” has long been a rally cry from critics who are worried enough about the free speech costs of civil enforcement. Once again, the Court majority hostile to campaign finance regulation has ratified this concern. Consider Citizens United, where the Court states at a number of points that the prohibition before it (on corporate spending) has to be evaluated with the understanding that it subjects those who violated it to “criminal sanctions,” Id. at 323, 337, and declares that “when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.” Id. at 356. See also McConnell v. FEC, 540 US 93, 333, 338 (Kennedy, J. concurring in part in the judgment and dissenting in part with respect to Parts I and II).

The conflict now underway over these and other issues are important, but they are rooted in deep divisions that would leave one to believe that unless these fundamental differences are addressed constructively, there is little hope of agreement on issues to which they have given rise.

Can they be addressed? If the old model retains its grip, and the style of argument remains the same, then answer won’t be reassuring. The task of constructing a new model will be hard and will take time. In the meantime, it seems unrealistic to imagine that when Don McGahn’s tenure on the Commission ends, and setting aside whatever effects are assigned to temperament or personality conflicts, much change should be expected in the form of better bipartisan cooperation on the FEC to resolve the major issues confronting the country in campaign finance.

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