“The Raw Story,” a liberal Washington, D.C.-based website that dubs itself an “alternative news nexus,” has distinguished itself this week by publishing a three-part hatchet job on Caroline Hunter, a Republican-designated FEC commissioner.
The spurious stories are so filled with vile personal attacks, gamed statistics and revisionist history that I hesitate to even address this sorry excuse for web journalism. Nonetheless, it seems necessary to respond as Prof. Rick Hasen posted the series on his widely-read Election Law Blog.
On Express Advocacy, Bill McGinley details how this series, often descending into slanderous attacks, has further diminished the already-shredded standing of “reform” groups.
These posts contain scurrilous accusations attributed to members of the so-called “reform community” demonstrating that the movement is devoid of any substantive ideas after a series of stunning defeats before the federal courts- including multiple cases before the U.S. Supreme Court. In my opinion, the quotes attributed to these “reform-minded” individuals diminish the relevancy of their organizations.
Like Bill, I’m not going to waste my time on an extensive refutation of every false or misleading allegation in the series. It’s clear that the writer made no attempt speak to a diverse range of sources—say, one or two Democratic or Republican campaign finance lawyers. Yet, in the interest of correcting the record on a few phony claims, let’s consider a few points, mainly from the story fretting about split votes at the agency:
(1) “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
— Chief Justice John Roberts
If one accepts Raw Story’s fuzzy math—”FEC inaction …rises more than 600 percent”!—based on Public Citizen’s gamed statistics on recent and historical split votes at the FEC, perhaps Raw Story should note that the FEC has a woeful win-loss record when defending McCain-Feingold regulations post-McConnell v. FEC. Something like “FEC slap-down by federal courts increases 1,000 percent!” would be more appropriate. The argument that the FEC is unreasonably trying to get ahead of the courts is easily refuted by the fact that if the FEC had proceeded with all these nuanced enforcement cases, as the “reform” community wanted, many of the votes would have been contrary to recent court holdings.
FEC commissioners swear an oath to support and defend the Constitution of the United States, not “reform” fantasy of what campaign finance law should be. Even after “reformers” lost several recent Supreme Court cases—Randall v. Sorrell, FEC v. Wisconsin Right to Life, Davis v. FEC, Citizens United v. FEC—they continue to press for rigid enforcement of the regulations in all circumstances, akin to demanding that police arrest everyone who takes an errant step outside a crosswalk for jaywalking. This is in clear contrast to multiple rebukes by the Supreme Court, directing the FEC to respect the First Amendment rights of political groups, candidates and individuals: At the Citizens United rehearing, Chief Justice John Roberts said, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”
As Benjamin Barr explained on CCP’s blog last year:
The most recent instruction given to the FEC by the Supreme Court in Wisconsin Right to Life v. FEC was simple: Where there are close calls, the benefit of the doubt goes to citizens and speakers, not the censor. The question must then be asked: Should commissioners who follow the Supreme Court’s direct instruction to exercise restraint instead of power be chastised or celebrated? Admittedly, it is hard to get excited about “nothing.” No fines, penalties, or claims of cleansed political processes come about when restraint is exercised. But freedom flourishes when less fines and meddling occur in citizens’ political lives. And that’s something to celebrate.
(2) Raw Story’s ridiculous assertions, regurgitating “reform” spin, are out of the mainstream, even for Democratic and liberal-leaning practitioners.
Let’s take a look at what White House Counsel, and former Democratic election lawyer, Bob Bauer wrote about deadlocks in 2009:
Finally, a note on 3-3 votes: these are greeted by many observers with something like despair, as if disagreement among Commissioners, along party lines, is a regulatory calamity. One such deadlock after another, in cases simple and complex, would indeed be unfortunate. But over the course of the Commission’s existence, this is not really how things go. Disagreements culminating in deadlock arise just where you could expect them: in cases where regulatory policy is controversial, for a host of reasons that include regulatory complexity, breadth of impact and, inevitably, political sensitivity.
Even in this last case, where partisan interests hover over the decision-making process, other factors, such as bona fide disputes about constitutional limitations, are actively at work. People do disagree, in good faith, about these issues: consider the disagreements on the Supreme Court (among other courts). It would be surprising if, on the hard cases, the same disagreements did not emerge on the FEC.
Not all the cases before the agency are hard cases, and it is a stretch to believe that all enforcement—the everyday, routine work of the FEC—is a victim of partisan, ideological or other dysfunctional “deadlock.” Certainly members of the regulated community do not behave as if this were so.
Bauer addressed this issue in greater detail at a BNA panel on developments in campaign finance law, later posted on Bauer’s now-dormant blog, More Soft Money Hard Law: “The Republican Commissioners and the Meaning of the Deadlocks at the FEC.” Bauer still has issues with the approach of Republican commissioners in vigorously defending constitutional speech rights, but he acknowledges that the deadlocks are principled—not partisan, occur in nuanced matters not at all crippling for routine enforcement and the Republican commissioners often employ prosecutorial discretion in a resource-scarce environment.
(3) The Republican FEC commissioners have not acted in a partisan faction.
To the contrary, they have acted with tremendous independence and integrity to uphold First Amendment political rights of candidates and political groups no matter their party or ideology.
Last year, CCP explained one “deadlocked vote” for which Republican commissioners drew fire: MUR 5957 involving a Democratic congressional candidate from California, Arjinderpal Sekhon:
The campaign failed to include occupational and/or employment information for 219 of its 245 donors (under the law, it is not required to provide that information, but must make “best efforts” to get it). For many, the campaign listed “self” as both the occupation and employer, which sounds a bit goofy until you realize that its treasurer, a family member, was inexperienced, and that many of the donors were physicians (the candidate being a physician himself). The case was generated internally – that is, no complaint was ever filed against Sekhon by his opponent or anyone else. As a result, Sekhon had no opportunity to respond to the charge until after the Commission had found “reason to believe” that a violation had occurred… Ultimately, the Republican commissioners refused to impose a fine on Dr. Sekhon for these errors. This is a question of judgment, not partisanship or rank ideology, as high profile Democratic campaign finance attorney Joe Sandler noted in defending the Republican Commissioners actions in this case.
As Bob Bauer explained, the Republicans also thwarted an enforcement action against George Soros, a prolific funder of liberal causes, in MUR 5642. The Democratic commissioners wanted to punish Soros for his use of a mailing list and distribution of a book advocating against President Bush.
In MUR 6202, involving the Missouri Democratic State Committee, the Republican commissioners rejected an audit referral for several reasons (3 Republican votes against, 2 Democratic votes for, one recused). The Commission later voted 5-0 to accept a conciliation agreement.
The Republican commissioners rejected the theory of FEC staff that Sen. Kirsten Gillibrand used her state committee for her federal candidacy in MUR 5935. FEC Democrats voted to pursue the matter.
In MUR 5835 the Republican commissioners rejected a crazy theory that the DCCC violated the law by not using a more rigorous disclaimer for a message testing poll.
In MUR 6062, the Republican commissioners rejected the FEC staff contention that a Washington state Democratic legislative caucus committee was a party committee subject to FEA restrictions.
In MUR 6037 the Republican commissioners rejected another theory about a disclaimer requirement supposedly applicable to an ad featuring now-Sen. Jeff Merkley, run by the Oregon Democratic Party and the DSCC.
In case after case after case—certainly in the seven matters briefly detailed above—the actions of Hunter and the other Republican commissioners are clearly based on sound, principled reasons having nothing to do with partisan score-settling. To imply otherwise is ridiculous and ignorant.
(4) Raw Story, along with their partners in crime in the “reform” community, neglect to provide any sort of nuanced or realistic examination of the recent split votes.
For example, as Raw Story pointed out, the FEC spent the first half of 2008 without a quorum, meaning that several contentious and complicated cases landed in the laps of Hunter and the other new commissioners.
Not all deadlocks are created equal. As pretty much any campaign finance law practitioner could explain, there is tremendous upheaval in the federal courts on campaign finance issues. The law is evolving at a rapid pace, in this case towards more liberty and respect for citizens’ First Amendment rights. It is the more nuanced cases involving these weighty issues that compose the bulk of the split vote matters. Perhaps the cases have also become more nuanced because the regulated community has become more careful in its conduct and compliance with regulations.
But Raw Story has no interest in explaining these issues in a serious way. They’re guilty of journalistic-or, perhaps bloggeristic-malpractice: instead of using the precision of a scalpel, they’re hacking wildly with a machete. Throwing around “raw” numbers without even a cursory attempt at analyzing the cases that result in split votes shows the same “lack of scrutiny” that Public Citizen lobbyist Craig Holman admitted he displayed when examining FEC nominations. The self-styled watchdog was asleep, and is apparently still skunk-drunk, as his slip-shod analysis demonstrates.
For those interested in a deeper, more serious examination of this issue, the Center for Competitive Politics has addressed the split votes issue at the FEC several times in the past couple years:
“Fred v. Don et al part IX“
[Jeff Patch; Jan. 6, 2010]
“Celebrating free speech at the FEC“
[Benjamin Barr; Nov. 5, 2009]
“Public Citizen: FEC regulations infallible“
[Jeff Patch; Nov. 4, 2009]
“Kudos to the ‘do-nothing’ FEC Commissioners: the Constitution compels humble restraint“
[Benjamin Barr; July 13, 2009]
“McCain, Feingold on the FEC warpath“
[July 1, 2009]
“Election law questions… for Prof. Hasen (and his students)“
[Steve Hoersting; June 29, 2009]
