If Commissioner McGahn had said, “I don’t worry about the decisions of the Supreme Court when I am called on to interpret the statute or our powers,” we can be sure that he would face vociferous criticism, and rightly so. Which simply points up the unfairness of Ornstein’s comments.

Perhaps recognizing that little problem, after lobbing this hand grenade Ornstein leaves open line of retreat in case he is called out, by quickly noting that Commissioner McGahn says he is relying on interpretations of the Supreme Court.  But after that quick passing notice, he returns to what has been a common theme in the reform community for years: commissioners (Democrats, Republicans, Mason, Sandstrom, Smith, McGahn, and more, one after another) simply aren’t “enforcing the law.” Ornstein writes: “McGahn has refused to enforce the parts of the law that the court has not reversed or changed, making his own judgments about what he wants the court to do or thinks it might do at some point down the road.” Revving up, Ornstein continues, “He has led his fellow Republican commissioners into an approach that has them united in refusing to enforce any actions, even when strongly supported by the technical staff and even when the violations of the law are clear.”

But clear to whom?  To Ornstein?  Who made him a judge?  When did the Senate confirm him as a Commissioner charged with interpreting the statute? Ornstein’s comment is the very exemplar of “tendentious.”  This is an old reformers’ trick.  Rather than debate or even discuss the meaning of the law, they simply hurl the accusation that Commissioners –again, numerous commissioners, from both parties, of varied backgrounds, over a lengthy period of time – won’t enforce “the law.” If Ornstein were willing to actually enter such a debate in good faith, to discuss what the law is, he would find that he and Commissioner McGahn (or me, or I suspect John White, who writes below, or many, many others) actually interpret the law, in good faith, quite differently than he does. Moreover, matching wits, understanding of the statute, and legal acumen with Commissioner McGahn, I have little doubt that Ornstein would come out the worse for wear.

Unfortunately, for many years the press has credulously chowed down on these accusations that it is just a matter of the Commission “not enforcing the law.” With the recent court decisions, however, and the founding of groups such as the Center for Competitive Politics, I think it is becoming harder and harder to pawn off such tendentiousness as serious analysis.

            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).

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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