Public Citizen’s Craig Holman posted this hyperbolic statement yesterday on Solicitor General Elena Kagan’s decision not to appeal en banc the recent decision in EMILY’s List v. FEC (the administration still may file cert with the Supreme Court).
The case invalidated FEC regulations on independent groups, specifically limits on contributions to fund independent expenditures by groups who also contribute directly to candidates through PACs. As usual, “reformers” response to their clear loss with the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit is to smear the three Republican members of the FEC, singling out Don McGahn, for presiding over an “incapacitated” agency.
Holman criticized recent “deadlocks” at the agency, noting a slight rise in recent split votes and lamenting the most recent 3-3 split on a vote to appeal EMILY’s List v. FEC. He comes close to willfully distorting the facts, noting that one of the judges rebuked the other two for overreaching but not mentioning that all three judges favored invalidating the FEC statutes at issue — two on broad First Amendment grounds. By any reading, the judicial rebuke of the FEC is a clear vindication for McGahn and the other two FEC Republicans (who, despite Holman’s petty slight, are not puppets of McGahn but passionate and articulate defenders of free political speech in their own right).
Despite claims by Holman and other frequent critics of the FEC like Democracy21’s Fred Wertheimer, the split votes at the FEC involve complicated debates over how to interpret campaign finance court decisions and the role of the FEC in regulating political speech. Enforcement at the agency continues, and clear campaign finance violations are punished; McGahn and FEC Commissioner Caroline Hunter published op-eds this summer noting that the agency has imposed over $2 million in fines.
Reformers have no clear principles regarding the importance of precedent in FEC regulations or Supreme Court decisions. To be fair, neither do we; but we don’t pretend to hold FEC regulations or Supreme Court decisions in the same league as the infallible word of God in campaign finance debates. We argue the issues on merit. Precedent is important, but it’s not overriding (especially in FEC regulations, which are clearly meant to evolve with new commissioners and court decisions). Holman and Wertheimer would have people believe that FEC regulations that restrict political speech rights are sacred, not to be altered under any circumstance. How ridiculous.
Democracy21’s Wertheimer has been “in and out of love” with the FEC regulations at issue in EMILY’s List v. FEC, but suddenly they’re indispensible. The Campaign Legal Center celebrated other court rulings involving the FEC it didn’t like, refraining from howling for an en banc appeal. Pro-regulation groups lamented overturning Austin v. Michigan Chamber of Commerce and McConnell v. FEC in Citizens United v. FEC, but they (U.S. PIRG and the Brennan Center for Justice) have no problem calling for overturning the most important case in modern campaign finance law: Buckley v. Valeo.
In short, Public Citizen’s latest rant is a clear cut example of “reform” hypocrisy: When a court decision hampers political speech regulation, it should be appealed; when it affirms it, let it stand. Public Citizen and other “reformers” should stick to the issues instead of maligning FEC commissioners with shrill personal attacks while pretending that they care about precedent.
