Going Rogue At The FEC

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“I’m speechless,” exhorted Federal Election Commissioner Ellen Weintraub at last Thursday’s public meeting. Umbrage-laden retorts have come to define public pronouncements by Ms. Weintraub and fellow Democrat Commissioner Ann Ravel. Weintraub was responding to Republican Commissioner Lee E. Goodman’s concern that resolving enforcement complaints by hard deadlines would disproportionately harm conservative groups — currently 49 of the 65 docketed actions. But her rebuke could have easily sourced to any number of current commission imbroglios, such as political committee status, internet speech regulation, or the number and amount of enforcement fines.

Despite Weintraub’s temporary vocal malady, she and Ravel have minced few words regarding perceived Republican intransigence. Weintraub told Rachel Maddow, “Half of the Commission doesn’t really want to see the laws enforced.” Chairwoman Ravel has been even less circumspect, telling the New York Times the agency was “worse than dysfunctional,” adding, “What’s really going on … is that the Republican commissioners don’t want to enforce the law … and that’s destructive to the political process.” The message: Republican Commissioners are abdicating their duty and undermining the public interest.

With that premise it’s unsurprising that after chairing the commission for only five months Ravel has declared she is going rogue. She is disavowing collaboration, compromise, and consensus-building to take her fight to the people. Ravel spins a classic reformer morality tale: she and her ally are white-hat wearing public interest champions fighting a compromised system rife with obstructionists willfully fomenting ‘dark money,’ corruption, policy-buying, and other malevolencies.

The two Democrats’ platform is a recurrent theme in the FEC’s 40-year history. From early battles over circumvention, and donor privacy, to the “soft money” debate that consumed the 1990s and eventually led to McCain-Feingold, reformers advocate a dual-plank platform: (i) campaign money is inherently corrupting and must be strictly controlled; and (ii) increasing democratic participation, small donations, and transparency are manifestly good.

The reformers don’t lack earnestness, but they fundamentally misconstrue what politics can and should accomplish. As articulated by Brookings Institute’s Jonathan Rauch:

Where the realist tends to believe that governing is inherently difficult, that politics is inherently transactional, and that success is best judged in terms of reaching social accommodation rather than achieving some abstract purpose, the progressive tradition tends to see government as perfectible and politics as a path toward a higher public good … the progressive tradition tends to see [the public interest] as an abstract benchmark, against which real-world politics continually falls short.

“The system” particularly private political contributions and unlimited independent advocacy as Ravel declares is ‘bad for everyone.’ Certain interests overwhelm the public good and prevent “correct” outcomes like Ravel’s pet project, candidate-gender equality. The reformer answer is to purify the public interest through a bureaucratic lens that ensures ‘fairness.’ Disinterested experts must monitor the system, control public discourse, and ultimately shape the policy endgame to ensure ‘proper’ civic goals are met.

The reformer view, however, is fantasy. There is no perfect baseline where altruistic public servants through administration and politics govern based on a perfected common good free from avarice or private motivation. And attempts to purify politics through campaign finance reform end in predictable disaster.

McCain-Feingold, for instance, failed to increase transparency, reduce political money, diminish “corruption,” or lessen public cynicism. It did, however, transfer money to unaccountable sources, hamstring political parties, unconstitutionally impede free speech, and at last produce calls for more regulation to close “loopholes.” Similar results would ensue from other proposed reforms like public funding or last summer’s push to constitutionally eviscerate the First Amendment. Reformer zeal to ‘enforce the law’ or pass ever more laws paradoxically takes them further away from their stated goal to act in the public interest.

Of course that doesn’t mean campaigns aren’t pushing the envelope and possibly passing it. Some of those issues like whether Crossroads GPS should have registered as a political committee are currently before the courts having deadlocked at the commission. Others like the propriety of Jeb Bush’s noncandidcacy candidacy and Hillary Clinton coordinating with a Super PAC have yet to receive commission votes. But none of these are easy issues in a constantly changing campaign finance environment with core First Amendment rights at stake. The Republican Commissioners no less than their counterparts seek rulings in the public interest, those that suggest otherwise do the FEC a disservice.

Paul H. Jossey is a lawyer living in Alexandria, Virginia. Please follow him on Twitter.