Celebrating free speech at the FEC

For the first time, members of political committees subject to the long arm of the Federal Election Commission’s audit authority may speak up when the FEC is dead wrong. Hard to imagine that the national gem for making politics clean lacks foundational safeguards inherent in a free society. Long considered a fundamental principle of due process — the right to be heard — the FEC has some catching up to do. Ever since progressive notions of justice sprung up from the Magna Carta in 1215, regulators worldwide have scurried from its light of justice. Enter stage left, the FEC.

The FEC deserves some applause for opening its doors and permitting the “regulated community” (that’s all of us who dare speak) a voice. Otherwise, the FEC operates much like a grand inquisitor — making findings of fact, determinations of law, and issuing penalties without much input from a free people affected by its constant churning of edicts, warnings and fees. Bringing notions of due process to the Commission helps bring accountability to its perpetual search for violations and reaping of penalties and fees, even where none should be had.

Don McGahn, oft-depicted by the popular press and “reformers” as an obstructionist commissioner, is largely credited in bringing these commonsense, constitutional safeguards to the FEC. The entire Commission’s support and 6-0 vote in favor of demanding that the same safeguards enjoyed by those alleged of drunk driving be applied to those who speak freely should be applauded in a civil society.

The Commission’s Nov. 4 audit hearing was a step in the right direction to bring transparency and accountability to an agency long needing this dose of electronic sunshine. At issue in the Commission’s first hearing was the Tennessee Democrats’ financing during the 2006 campaign season. The Tennessee Democrats raised the ire of an excitable Commission not due to errors of their own, but because vendors they relied on made billing mistakes. These third-party vendors worked on generic get-out-the-vote items and errantly billed the Harold Ford, Jr. campaign instead of the Tennessee Democrats, thus putting the Democrats in jeopardy.

Opening up audit proceedings to notions of due process and fundamental fairness exposes some of the hijinks inherent in FEC daily life. Also at issue in the Commission’s first audit hearing was the question of phone polling expenses. Truth be told, the Commission had settled this legal issue in July 2009, when the legal theory that phone polls required certain disclaimers was put to rest. Recognizing that respect of precedent is not always the FEC’s strong suit, internal staff pushed for further investigation.

We welcome the continued application of Justice Brandeis’ rule of transparency to the Commission — “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” In an age of creeping fog around the operation of government, the FEC’s dedication to reveal its own inconsistencies and let free men speak against the machine should be applauded.

The FEC press release on the hearing is here.

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