Bauer vs. CCP vs. Wertheimer vs. DOJ re 527 Enforcement

Bob Bauer suggests that this post by CCP Legal Director Reid Cox goes off course in its criticism of Fred Wertheimer, who has been trying to threaten folks – and get the Department of Justice to threaten folks – with criminal prosecution for alleged violations of campaign finance laws.  Here it is Mr. Bauer who has, in a rather unusual slip, gone "off course," and a brief response is necessary. 

The quick background is thus:  Fred Wertheimer is complaining that DOJ is not pursuing criminal actions against alleged violators of campaign finance law.  He bases this on a statement by Craig Donsanto, Director of the Election Crimes branch at the DOJ’s Office of Public Integrity, that Justice would not pursue "knowing and willful" violations of campaign finance law for certain activity undertaken by 527 organizations. 

CCP was critical of Wertheimer, with Cox stating:

"Wertheimer does not want the criminal enforcement of the campaign finance laws as they were enacted by Congress and interpreted by the Supreme Court.  Instead, Wertheimer wants to see criminal investigations based on previous FEC enforcement actions that are not-and have never been-supported by either congressional legislation or court interpretation."

Bauer interprets this as CCP arguing, "that disputed rules can be disregarded because some, moved by constitutional scruples, don’t like them."  If that were true, then of course CCP would have gone off course.*  But that is not what CCP says.  The point of Cox’s statement and accompanying memo is that Wertheimer’s interpretation of the law is incorrect, and to the extent that it even accurately states what the FEC has been doing (which isn’t entirely true), such actions are not proper interpretations of the law. Conciliation agreements negotiated by the FEC, in which the respondents have denied wrongdoing, cannot be the logical basis for determining "the law" so as to make any other interpretation a "knowing and willful" violation.  Moreover, even if correct, there is a marked difference between civil and criminal penalties, and the government is not required in any case to throw all its resources into obtaining maximum criminal penalties in any area of law.  But that is especially true where, as here, what Fred Wertheimer claims is "the law" is not really "the law" at all.

For example, the FEC’s regulation at 11 CFR 100.22(b) has been struck down as unconstitutional by at least four federal courts of appeal.  Despite the fact that the Supreme Court has not reviewed (let alone overruled) any of those courts of appeal, and despite the fact that that regulation was not at issue in McConnell v. FEC, the FEC has attempted to argue that somehow McConnell gave new life to that unconstitutional regulation.  Wertheimer then argues for a particularly aggressive interpretation of that unconstitutional regulation, and finally demands that DOJ ignore those courts that have found the regulation unconstitutional, adopt his radical interpretation of the regulation in particular cases, and pursue criminal violations against alleged perpetrators.  Along the way, Wertheimer further ignores the potential effect of Wisconsin Right to Life v. FEC, decided by the Supreme Court last year.  Like McConnell, the WRTL decision does not specifically deal with the regulation in question, but surely if McConnell is relevant, WRTL is more on point and throws further doubt on the constitutionality of 11 CFR 100.22 (b).  At an absolute minimum, DOJ is more than justified merely as a matter of resource allocation is deciding not to go there.

Wertheimer’s other claim is based on 11 CFR 100.57, a regulation that the FEC has interpreted in ways that were unintended by at least some of those Commissioners who voted for it.  That aside, the regulation, as interpreted, raises serious constitutional objections and has never been tested in Court.  This does not deny that the FEC might pursue alleged violations based on the regulation, but it does suggest that DOJ is making both an intelligent deployment of its resources, and a constitutionally sensitive interpretation of the law, in deciding not to pursue criminal charges against alleged violators. 

Bauer suggests that this is not sufficient for Justice to beg off pursuing "knowing and willful," criminal violations.  He writes, "the entire field is shadowed by constitutional concerns and objections, and the Supreme Court has not set a stable foundation for limiting the breadth of these questions."  That is true.  Of course, we argue – I think quite reasonably – that that is indeed a strong argument against filing criminal charges in an area of core First Amendment speech.  And as Mr. Bauer knows, "knowing and willful" criminal prosecutions under the FECA are, in fact, extremely rare, largely for this very reason. 

Second, there are shadows, and then there are shadows.  There are constitutionally suspect regulations that have been long enforced without being challenged, or constitutionally suspect regulations upheld by lower courts; or regulations indirectly supported by higher court decisions in related others; and then there are regulations of short duration, untested, unsupported by, or even indirectly undercut by, judicial decisions.  In short, where the law is not clear, then it is hard to pursue alleged violations as "knowing and willful."  Where the law is so unclear – and certainly the FEC has developed no clear guidance for when either 100.22 or 100.57 apply – how can any violation be "knowing and willful?" 

In short, it is not CCP’s position that the law should go unenforced merely because people with constitutional scruples don’t like it (although surely there are such times).  Rather, what Mr. Cox was pointing out was that Wertheimer’s declaration of "the law" has no clothes, or is at best indecently dressed.  In these circumstances, DOJ, an arm of the executive branch not subservient to the FEC and certainly not to Mr. Wertheimer, is correct in exercising restraint, especially in an area of core constitutional liberty.

If the question is simply, should DOJ enforce "the law," including the law on "knowing and willful" violations, then we’re all with Mr. Bauer.  If the question is whether "the law" DOJ ought to enforce is whatever Fred Wertheimer claims it is, and the proper allocation of DOJ’s resources is whatever Fred Wertheimer claims it should be, well, we disagree, and we think our course is the right one.

 * Well, maybe not, if you believe, as many do, that the President has a role in enforcement of the law, and an independent duty to enforce the Constitution.  But that a big issue that goes far beyond this point.

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