Sens. John McCain and Russ Feingold, the kings of campaign-finance reform, have put a hold on President Obama’s Democratic nominee to the Federal Election Commission. The senators are upset over recent votes by the Republican commissioners, particularly holdover Don McGahn, whose official term ended in April but who continues to serve until a replacement is named and confirmed. The joint statement by McCain and Feingold says, “The FEC is currently mired in anti-enforcement gridlock,” as if the commissioners were engaged in wrongdoing.
That is not true. There have been some tie votes recently on the six-member commission, which means that the FEC cannot move forward in enforcement investigations. However, the reason the three Republicans have voted as they have is that they engaged in a detailed analysis of the applicable law and regulations and have refused to proceed in cases where the law is unclear, ambiguous, or not applicable to the facts. That is exactly the way good public officials should act when enforcing a law that regulates core political activity and political speech that is otherwise protected under the First Amendment.
The situation is amusing for a couple of reasons. First of all, a Republican senator placing a hold on Obama’s nominee for a Democratic commission slot is poetic justice, given that then-senator Obama put a hold on President Bush’s nominee (yours truly) for a Republican commission slot back in 2007. This broke a long Senate tradition, going back to the beginning of the FEC, that each party gets to choose its own commissioners without interference by the other party. In other words, Obama is being hoist by his own petard.
The other reason this is so amusing is that if it weren’t for the three Republican commissioners voting together to block enforcement of ambiguous and confusing provisions, McCain would be paying large civil penalties for violating the law he co-authored. McCain has demonstrated on more than one occasion that he does not understand the requirements of his own law, including when he was investigated by the FEC while I was on the commission.
The supposed purpose of the McCain-Feingold amendments was to drive “soft money” out of federal campaigns. Soft-money campaign contributions are those not subject to federal limitations — such as the funds raised by state candidates and state parties. Thus, one of the provisions that McCain pushed was a ban on federal candidates’ soliciting, on behalf of state candidates, contributions that exceed the federal limits or come from sources prohibited by federal law.
However, McCain has been accused of violating this very provision on two different occasions. When Arnold Schwarzenegger was running for reelection, McCain agreed to be the featured speaker and “Special Guest” at a fundraiser. Contribution limits are much higher under California law than under federal law. McCain claimed he did not violate federal law because he was only a speaker and did not actually solicit any funds. However, his name was on the invitation, which solicited large contributions, and the event was clearly intended to raise funds above the federal limits — McCain was the draw to bring in large contributors. When the complaint filed against McCain was brought before the FEC, four commissioners voted to proceed with a full-scale investigation, because there was “reason to believe” that McCain had violated the law despite a disclaimer on the invitation.
A second complaint was filed against McCain for engaging in the same behavior in South Carolina, where he was again the featured speaker at a fundraiser. Once again, four commissioners voted to approve an investigation because they believed McCain had violated the anti-solicitation provision.
In both cases, I voted against opening an investigation for a number of reasons, including confusing regulations and bad prior decisions by the FEC. But the point is that the majority of the commissioners concluded that McCain had likely violated the law. When McCain’s lawyer appeared at a probable-cause hearing, it was very clear that his client simply did not understand the limits imposed by his own provision barring soft-money fundraising by federal candidates.
Campaign reformers are constantly criticizing commissioners, particularly Republican commissioners, who vote against the recommendations of the FEC’s career legal staff. Well, at the conclusion of the investigation, the career legal staff recommended that McCain be found in violation of the law in both cases and that a civil penalty be imposed. But when it came down to the final vote on whether to accept that recommendation and impose the civil penalty, the three Republican commissioners voted against finding a violation of the law.
I agree with the legal analysis of the Republican commissioners. But now we have a situation in which McCain, who claims he did not violate the law, wants to replace those same Republican commissioners, on the grounds that the FEC needs “new commissioners with a demonstrated commitment to the existence and enforcement of the campaign-finance laws.”
So who does McCain think was correct in his own case — the career lawyers and the three Democratic commissioners, or the Republican commissioners he wants replaced because they are supposedly not enforcing the law? If the author of the law can’t understand its confusing, complicated, and often ambiguous requirements, how does he expect the rest of the political world to do so?
– Hans A. von Spakovsky is a former commissioner on the Federal Election Commission.