Kudos to the ‘do-nothing’ FEC Commissioners: the Constitution compels humble restraint

July 13, 2009   •  By bbarr
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When it comes to preserving our constitutional liberties, it is so often the case that valuing restraint over action is a virtue, and a message sorely needed to be repeated. The Federal Election Commission is an especially unusual creation — itself possessing the rare power to meddle with fellow citizens’ political activities. Recently, a small chorus of voices has crept up; worried that something is rather afoul at the FEC — there have not been enough fines, investigations, and penalties levied against citizens.

Some election law observers and those within the self-styled reform community have launched their own series of labels for the hesitant commission — “obstructionist,” “defunct,” and “ideological” are among the many. These critics construct an overly simplified problem at the FEC, reasoning that a commission that authorizes fewer investigations and penalizes fewer citizens must somehow be corrupt or unwilling to uphold the law. But these critics all lose sight of more important considerations, and considerations which carry the full blessing of the United States Supreme Court.

As of late, The Washington Post editorial page, Talking Points Memo, and others have put blame on Republican commissioners as the source of the commission’s roadblock. Reasoning these commissioners just don’t believe in the law they are to enforce, it is generically assumed that every time they vote against enforcement or opening an investigation, some ulterior political motive must be at bay. But the Post, TPM, and others fail to recognize that something more important, the Constitution, just might be driving these commissioners’ decisions. And it proves worthy to note that these commissioners take an oath to uphold that Constitution.

Throughout the FEC’s history, the commission has been on the losing end of many free speech and constitutional challenges. The reason is easily understood: In our constitutional Republic we favor more speech and less government intervention in public debate. As George Washington reasoned, we must be not be too giddy in welcoming government authority: “Government is not reason; it is not eloquence, it is force. Like fire, it is a dangerous servant and a fearful master.” It should come as no surprise then that courts have not instructed the FEC to increase fines against citizens, launch more investigations, or be more harsh in the way it operates. No, the Supreme Court has told the commission to hold back, slow down, and be mindful of the Constitution in the two most recent challenges to federal election law. Chief Justice Roberts even chided the commission (“enough is enough”) for its tendency to be swept away by its own grandeur and not protective of citizens’ constitutional rights.

Remember, this is a commission that fines, penalizes, and meddles in the private political lives of fellow citizens. When it fines people because they submitted paperwork errors about money spent on simple political advertisements, it penalizes speech. When the FEC opens investigations into the lives of citizens based on scant evidence, it is injuring those citizens’ rights to participate freely and openly in our democratic process. Fines, penalties, and investigations are not always welcome events; they often prevent others from becoming active in politics, ensuring that less, not more, voices participate in our open discussion.

Self-styled reformers often paint an idealized image of a powerful FEC that launches countless investigations, issues numerous fines, and “cleanses” the national political process. We should fear such cleansing. Within such a fantasy, the commission is composed of super-human commissioners who can determine which speech is “pure,” and which should be fined, which organizations operate of noble intent and which seek to affect elections by daring to speak their opinions about public officeholders. But in the day-to-day reality of government commissions and political campaigns, people make mistakes and bureaucrats sometimes abuse power. That’s why limits have been placed on government authority to ensure that our cherished hallmark of freedom — free expression — remains untainted.

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.

How easy it is to concoct stories about a supposed Republican “war” on the FEC or claim that dangerous ideological forces are subverting the agency’s function. The freedom of speech and association guaranteed to every citizen under the Constitution adheres to no ideological label. But we must be vigilant to ensure that the promise of the First Amendment remains intact. In order for the First Amendment to protect citizens of this Republic, we must have commissioners dedicated to exercising humble restraint, not wanton overarching supremacy.


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