Ornstein’s feckless attack on FEC Commission McGahn misfires

March 30, 2011   •  By Brad Smith
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Writing today in Roll Call, Norm Ornstein, the man who, per some accounts, largely drafted the McCain-Feingold bill behind closed doors, rips into Federal Election Commissioner Don McGahn. McGahn’s offense: at a recent speech at the University of Virginia School of Law, McGahn confessed that, when the Federal Election Campaign Act and the Constitution, as interpreted by the Supreme Court, are in conflict, he sides with the latter. Specifically, Commissioner McGahn stated bluntly, ““I’m not enforcing the law as Congress passed it.”

Ornstein rips into Commissioner McGahn for this, calling him, “The Public Official Who Has Most Blatantly Violated His or Her Oath of Office.” Of course, this is the inevitable result of having a law on the books whose provisions have repeatedly been found to be unconstitutional, from Buckley v. Valeo in 1976 up through Citizens United v. FEC and SpeechNow.org v. FEC a year ago.

If Commissioner McGahn had said, “I don’t worry about the decisions of the Supreme Court when I am called on to interpret the statute or our powers,” we can be sure that he would face vociferous criticism, and rightly so. Which simply points up the unfairness of Ornstein’s comments.

Perhaps recognizing that little problem, after lobbing this hand grenade Ornstein leaves open line of retreat in case he is called out, by quickly noting that Commissioner McGahn says he is relying on interpretations of the Supreme Court. But after that quick passing notice, he returns to what has been a common theme in the reform community for years: commissioners (Democrats, Republicans, Mason, Sandstrom, Smith, McGahn, and more, one after another) simply aren’t “enforcing the law.” Ornstein writes: “McGahn has refused to enforce the parts of the law that the court has not reversed or changed, making his own judgments about what he wants the court to do or thinks it might do at some point down the road.” Revving up, Ornstein continues, “He has led his fellow Republican commissioners into an approach that has them united in refusing to enforce any actions, even when strongly supported by the technical staff* and even when the violations of the law are clear.”

But clear to whom? To Ornstein? Who made him a judge? When did the Senate confirm him as a Commissioner charged with interpreting the statute? Ornstein’s comment is the very exemplar of “tendentious.” But this is an old reformers’ trick. Rather than debate or even discuss the meaning of the law, they simply hurl the accusation that Commissioners -again, numerous commissioners, from both parties, of varied backgrounds, over a lengthy period of time – won’t enforce “the law.” If Ornstein were willing to actually enter such a debate in good faith, he would find that he and Commissioner McGahn (or me, or many, many others) actually interpret the law differently than he does. Moreover, matching wits, understanding of the statute, and legal acumen with Commissioner McGahn, I have little doubt that Ornstein would come out the worse for wear.

Unfortunately, for many years the press has credulously chowed down on these accusations that it is just a matter of the Commission “not enforcing the law.” However, with the recent court decisions, and the founding of groups such as the Center for Competitive Politics, I think it is becoming harder and harder to pawn off such tendentiousness as serious analysis.

Roll Call headlines the piece, “Ornstein awards are nothing to brag about.” They got that right.

*Of course, one can argue that the very purpose of commissioners is to overrule the recommendations of “technical staff.” Otherwise, why give commissioners that power, or even have commissioners at all? Further, it is appropriate that the career staff be more cautious about inserting constitutional interpretation into its determinations.  That is the type of thing that often ought to be “bumped upstairs” for the commissioners to deal with.


Brad Smith

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