Re: [EL] "Ornstein's Awards are Nothing to Brag About"

The question of whether the agency should be faithful first to the Constitution, then to the statute, is not new at all. After the Supreme Court issued its second Wisconsin Right to Life decision in 2006, the FEC had to rewrite its rules to account for the Court's holding, which was that BCRA's financing restrictions on electioneering communications could not reach ads lacking "the functional equivalent of express advocacy." The Court didn't consider the question of disclosure. In their complaint, the plaintiffs went out of their way to say they weren't raising it. But the FEC took it up anyway, asking for input on "the rules governing reporting of electioneering communications." 70 Fed. Reg. at 50,262.

I and others filed comments on behalf of the DSCC and the DCCC, saying that the agency had to follow the disclosure statute unless and until it was struck down. Even some skeptics of disclosure (indeed, if memory serves, even The Skeptic) looked past their policy preferences and warned the FEC not to play swami, and try to guess through rulemaking how a future Court might judge the disclosure question. But the FEC, at the behest of commenters on all sides of the ideological spectrum, rolled back the rules "to require corporations and labor organizations to disclose only the identities of those persons who made a donation aggregating $1,000 or more specifically for the purpose of furthering ECs." 72 Fed. Reg. at 72,911 (emphasis added). It was a classic case of "watch what I say, not what I do." While claiming to agree that WRTL did not address disclosure, it rolled back the disclosure requirements all the same.

The FEC's decision was not inconsequential, especially after Citizens United. It bears no less responsibility than Commissioners McGahn, Petersen and Hunter for the strained dismissal of a complaint that the DCCC filed against Freedom's Watch in MUR 6002. (There, the sponsor of an electioneering communication disclosed no donors at all, even though it had one major donor who was said to provide his funds on a project-by-project basis.) And if the agency made a tacit bet in the WRTL rulemaking on the constitutionality of the statute's disclosure requirements, it lost that bet completely in Citizens United.

I write not to let Commissioner McGahn off the hook for this, that or the other thing. Rather, I would only point out that the current state of the campaign finance laws cannot be just be chalked up to Commissioner intransigence or bad faith. The story of how we got where we are is much more complicated than that.

=B.

Brian G. Svoboda | Perkins Coie LLP
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From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of John White
Sent: Wednesday, March 30, 2011 1:17 PM
To: Joseph Birkenstock; rhasen@law.uci.edu; Election Law
Subject: Re: [EL] "Ornstein's Awards are Nothing to Brag About"

I read the Ornstein piece and had exactly the same reaction. But I believe that not only is Mr. Ornstein’s criticism unfair, it is fundamentally flawed as a matter of separation of powers. Where conceptually or textually similar provisions have been declared unconstitutional by the Supreme Court, the executive should be guided by those court decisions when enforcing the balance of the law. It would be irresponsible for the executive to ignore what the courts have said regarding the limits the First Amendment places on regulation of campaign-related speech. The court decides the specific question placed before it. As we all know, court decisions can be “authority” beyond their specific holding. Otherwise we would have no “see,” “accord,” or “cf.” citation forms to worry about.

Some of the Commissioners may take a more narrow reading of the Supreme Court’s decisions in this area than Commissioner McGahn, but that does not mean that they are violating their oaths by failing to uphold the First Amendment (through aggressive interpretation of the FEC’s enforcement powers).

John J. White, Jr.
white@lfa-law.com
(425) 822-9281 ext. 321

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From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Joseph Birkenstock
Sent: Wednesday, March 30, 2011 8:44 AM
To: rhasen@law.uci.edu; Election Law
Subject: [EL] "Ornstein's Awards are Nothing to Brag About"

Food for thought: wouldn’t it be a clearer violation of an FEC commissioner’s oath of office to in fact enforce the law as Congress wrote it? Bringing an action to enforce FECA’s limits on independent expenditures, for example, would seem to me to be potentially sanctionable in a court, and at a minimum could subject the Commission to (yet further) liability to pay the respondent’s legal expenses under an EAJA petition.

I see that Ornstein noted what he calls McGahn’s “disclaimer,” but I don’t think he paid enough attention to it. Whether or not Ornstein (or I) or anyone else is happy about it, the foundation underneath the entirety of campaign finance law undeniably has shifted, a lot, and it really doesn’t seem productive to me to respond to that shift by lobbing this kind of accusation at the administrators of the agency that’s obligated to adapt to the new reality.

My only point being that you don’t need to agree with everything these Commissioners (or any Commissioners) have done to think that it’s a mistake to attempt the leap from “I disagree with his decisions” to “he violated his oath of office” with as little run-up as Ornstein offers here.

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA

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