Required to ask ‘Mother, may I?’

The lead news from the Federal Election Commission meeting last Thursday, as reported by the Associated Press, was that the six commissioners "voted unanimously … to belatedly approve Republican presidential candidate John McCain’s withdrawal from public financing for the primaries."  And, while that certainly was the newsworthy result, for those of us who were in attendance and follow election law, perhaps the more important discussion (and decision) was buried as a stand-alone sentence that appeared in the middle of the story.

There in the sixth paragraph, the AP’s Jim Kuhnhenn reported that the "FEC rejected McCain’s argument that he did not need the FEC’s approval to withdraw from the public system."  In other words, once McCain committed to public financing-regardless of whether he ever received or traded on the promised money-he couldn’t get out without asking and getting permission from the FEC to do so.  Indeed, in her comments at the meeting, Commissioner Ellen Weintraub made it clear that this was the issue for her-namely, whether the FEC always retains the regulatory power to require that candidates ask "Mother, may I?"

Now, to be fair, the FEC has a right to be concerned about candidates being able to unilaterally remove themselves from the public financing system.  After all, public funding is essentially a bargain.  Quite simply, each presidential candidate gets to make a choice whether he or she wants to receive public financing and, in exchange, also accept prescribed spending limits.  So, if a candidate could simply reverse course and remove his or her campaign from the public system on command, then candidates could sign up for the public money and get out to avoid the spending limits.

However, McCain wasn’t in this one-sided position of reaping the benefits of the bargain without accepting the costs-quite the opposite.  Everyone acknowledges that McCain didn’t ever receive any money from Uncle Sam.  And, the commissioners also agreed that, although carefully structured, McCain did not secure a loan based on his eligibility for public funding.  However, all the while, McCain has faced the threat that the spending limits could be imposed against him, not only shutting down his public message but also subjecting his presidential campaign to further penalties.

Thus, when Commissioner Weintraub insisted that only the FEC-and not the candidate-could decide whether McCain could withdraw from the public financing system, she was essentially betraying the absolute power she thought the FEC should have over candidates and their campaigns.  After all, McCain had never received the funding benefit of the bargain, just the possibility of the spending limit cost.  Nevertheless, Weintraub still insisted that McCain needed to get permission to withdraw from this arrangement that was no "bargain" at all.

In fact, Weintraub was quite the straight shooter in noting the absolute power the FEC should have over candidates.  Explaining why she thought McCain still had to get the FEC’s permission to withdraw from public financing despite never receiving any public money, Weintraub said the FEC could not allow the regulated (i.e., the candidates and their campaigns) to tell the regulators (i.e., the FEC) what was possible and permissible.  In other words, McCain needed to remember he was but a subservient child to the FEC’s domineering mother.

Commissioner Weintraub’s view of the world is not atypical of those occupying the regulatory seats of power, but it is constitutionally troubling since the FEC regulates and restricts core political speech presumptively protected by the First Amendment.  Indeed, the U.S. Supreme Court upheld the constitutionality of public financing for presidential candidates-along with the spending restrictions that come attached-because of its voluntary nature, with each candidate being allowed to choose to forego some free speech rights in order to receive some public funding.  Weintraub would add another requirement to that already precarious constitutional bargain-namely that, once committed, the candidate has to ask permission from the FEC to have their free speech rights restored if the candidate decides against taking the public money.

This whole episode demonstrates just what a lamentable and perilous position candidates and their campaigns find themselves in when it comes to exercising their constitutionally protected rights of free speech and association.  But unfortunately, it is just the latest example of how little the FEC thinks of just what they are regulating, and how much certain commissioners think of their ability to regulate it.

The Center for Competitive Politics is now the Institute for Free Speech.