In a joint op/ed Wednesday, the three Republican members of the Federal Election Commission blasted campaign finance reformers and good-government groups for proposing changes to the impotent agency, defending themselves as “fair and impartial” regulators and administrators of campaign finance laws. But this same trio has been responsible for historic deadlock at the Commission and has openly refused to follow the campaign rules enacted by Congress. FEC Commissioners Caroline Hunter, Donald McGahn II, and Matthew Petersen, all three of whom continue to serve though their terms have expired, wrote that “The agency’s harshest critics disregard the agency’s prime enforcement directive: Enforce the law as it is, not as some wish it to be.”
Ultimately, charges that the agency “does not enforce the law” ignore the legal parameters set by Congress that have been further limited by the courts. Failure to recognize these constraints would leave political participants at the mercy of unelected bureaucrats, an outcome both Congress and the courts have rejected.
Of course, thanks to these three, the Federal Election Commission has not followed the “legal parameters set by Congress.” Indeed in 2011, McGahn conceded “I’m not enforcing the law as Congress passed it… I plead guilty as charged.” Instead, he argued, he enforced the law based on his own interpretation of what the Supreme Court would want him to do. “In a close call, the tie goes to the speaker, not the regulator… The court has said certain [portions of McCain-Feingold] are unconstitutional.”
But rather than wait for the courts to rule on who should have to disclose the donors funding their electioneering communications, these Republicans instead simply chose to ignore the clear text of the 2002 campaign finance law and have allowed hundreds of outside group ads to be aired with no real disclosure as to who bankrolled the message