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

<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->

To ensure compliance with requirements imposed by the IRS, 

we inform you that, unless specifically indicated otherwise, 

any tax advice contained in this communication (including any 

attachments) was not intended or written to be used, and 

cannot be used, for the purpose of (i) avoiding tax-related 

penalties under the Internal Revenue Code, or (ii)  promoting, 

marketing, or recommending to another party any tax-related 

matter addressed herein. 

This message is for the use of the intended recipient only.  It is

from a law firm and may contain information that is privileged and

confidential.  If you are not the intended recipient any disclosure,

copying, future distribution, or use of this communication is

prohibited.  If you have received this communication in error, please

advise us by return e-mail, or if you have received this communication

by fax advise us by telephone and delete/destroy the document.