How FEC Democrats Hold Regulatory Reform Hostage
“The reality is Citizens United is a game-changer,” McGahn said. “But it’s not just Citizens United. It’s EMILY’s List [v. FEC]. It’s SpeechNow[.org v. FEC]. It’s Unity08 [v. FEC]—case after case after case. We have a lot of things on the books that shouldn’t be on the books.”
“What I don’t understand is why we still haven’t begun the process of taking [regulations] off that books that have already been declared unconstitutional so people can exercise their rights,” he continued. “EMILY’s List came out in Sept. 2009. Holy cow! Holy cow!”
EMILY’s List sued the FEC over a similar issue. The agency prohibited the liberal interest group from raising state-limited funds for state-level activities because it was established as a federal entity. Bob Bauer, who would later become President Obama’s White House and campaign counsel, represented the group and successfully demolished the FEC’s arguments. Nearly two years after the decision, the FEC has still not rewritten its regulations to account for its loss in EMILY’s List.
Nonetheless, Weintraub maintained that the GOP position was not “intellectually defensible.”
“Okay, one more time, why are we holding hostage removing [regulations] from the books?” McGahn asked Weintraub. “It’s maddening. You were enjoined last night from some of your theories. This is ridiculous!”
McGahn was referring to Carey v. FEC, a June 14 ruling by a federal court preventing the FEC from enforcing unconstitutional campaign finance regulations in defiance of the EMILY’s List opinion.
Retired Rear Adm. James J. Carey, the founder and treasurer of the National Defense Political Action Committee (NDPAC), sought to raise unlimited funds to advocate for or against candidates – after SpeechNow.org legalized independent expenditure committees, colloquially known as “Super PACs” – while at the same time using contribution-limited funds held in a separate bank account to donate directly to candidates as a traditional PAC. NDPAC supports the rights of American veterans and supports federal candidates with military experience who share the group’s limited government values.
But, contrary to Holman’s nonsense about the FEC approving everything, FEC Democrats blocked Carey’s request for an opinion green-lighting his group, in effect issuing a prior restraint against the group’s speech. Democrats insisted that Carey go through the trouble of creating two separate organizations. Carey, represented by a legal team including Stephen M. Hoersting and Benjamin T. Barr, sued the FEC to enable NDPAC to fully engage in political advocacy under the law.
“Whichever candidates Plaintiffs wish to support and issues they wish to espouse must be freed immediately from the chill of possible FEC enforcement,” wrote federal judge Rosemary Collyer, in granting the plaintiffs’ preliminary injunction. Collyer referred to the FEC’s legal arguments as “unpersuasive,” “erroneous,” “crabbed,” “heavy-handed,” and “fundamental[ly] flaw[ed].”
NDPAC initially asked the FEC for its opinion on the issue in Aug. 2010. It took almost a year for the group to vindicate its legal right to engage in political speech—and the FEC shows no signs of dropping the case. Such is the state of political freedom in America, despite the advance of Citizens United.
Back at the FEC hearing room, McGahn again challenged Weintraub, highlighting the fact that she actually voted for the existing disclosure regulations, which were passed in 2007 and upheld by the Supreme Court in Citizens United, because she wanted to limit the disclosure of donors to labor unions. Now, with corporate America and conservative donors moonlighting as the bogeymen of the left, Weintraub sings a different song. To Americans who want to speak out about political issues, it sounds like nails on a chalkboard.
The FEC isn’t dysfunctional; campaign finance laws are. Speech restrictions are so pregnant with the potential for partisanship that even-numbered commissions are our best option while restrictions exist. It’s just that the left howls loudly and drags its feet when it can’t enact its vision of a utopian regulatory state.
Jeff Patch is a writer and political consultant. Stephen M. Hoersting, an attorney for NDPAC, is co-founder of the Center for Competitive Politics.