Democratic Majority Leader Harry Reid has pitched a new deal in an effort to reopen the doors at the Federal Election Commission, which remain virtually shuttered by a Senate stalemate over its nominees.
Currently, this regulatory panel charged with overseeing campaign finance and political speech restrictions finds itself four Commissioners short and unable to act in the midst of the longest primary contest in recent memory.
Skeptics of campaign finance regulations have long voiced concerns that the FEC’s primary use is as a pawn for political operatives with which to harass, intimidate, and even silence their opponents. But never before has the inanity of the entire campaign finance regime been so apparent.
The Senate deadlock arises from objections by Democratic Senators and campaign finance "reform" organizations to a nominee, Hans von Spakovsky, who served on the FEC without controversy as a recess appointment for more than a year and a half. Nonetheless, his critics have seized on his previous tenure at the Department of Justice to obfuscate and argue that he is unfit to enforce the nation’s campaign finance laws.
Not surprisingly, the so-called "reform" organizations, notably the Campaign Legal Center and Democracy21, pin the impasse squarely on Senator Mitch McConnell, a long time defender of free speech.
Fred Wertheimer has said that shutting down the FEC is "worthy of a banana republic — and in this case the buck stops with Senate Republican Leader Mitch McConnell."
Of course, the truth is much more complicated.
Traditionally, the Senate approves FEC nominees in pairs – one Republican and one Democrat. Last fall, the Senate leaders of both parties reached an agreement to do just that only to see it scuttled when some Democratic senators – including one still running for president – placed a hold on von Spakovsky’s nomination.
The campaign finance world ironically turned upside-down sometime after the "decommissioning" of the FEC in January. Now, the Campaign Legal Center and Democracy 21, which objected to von Spakovsky because they contend that he would not fairly enforce the law, silently condone alleged misdeeds and "violations of the spirit" by "reform" hero John McCain.
A prominent labor union lawyer, Laurence E. Gold, issued a memo in February questioning the "reform" organizations curious silence regarding an ongoing dispute between McCain’s presidential campaign and the FEC over whether or not McCain is able to opt out of the federal public financing system.
Last year, while McCain’s campaign was nearly broke, it applied and was approved to participate in the federal matching fund program. Subsequently, McCain used the guarantee of the federal dollars to help secure a bank loan that kept his campaign afloat. He also benefitted from the arrangement by being placed on several state ballots without having to bother with the costly signature gathering process because he was a publicly-subsidized candidate.
But once he became the frontrunner, and the money started flowing in, McCain asked to drop out because he did not what to abide by the spending limits required of publicly-subsidized candidates. The problem, though, was that McCain had received benefits not afforded to candidates who relied solely on voluntary contributions.
In his memo, Gold observed that ordinarily the Campaign Legal Center and Democracy 21 "would be outspoken about an imbroglio concerning a presumptive presidential nominee’s belated effort to withdraw from public financing at a time when the FEC is raising legitimate procedural and substantive questions about his doing so."
But, as Gold notes, the Campaign Legal Center and Democracy 21 have long served as legal counsel for McCain, defending his speech-restricting "reform" measures. Moreover, the president of the Campaign Legal Center, currently on leave, serves as General Counsel to the McCain campaign.
The Atlantic Monthly’s Marc Ambinder commented, "Regardless of whether McCain is doing something nefarious — whether he’s violating the spirit or letter or intent or a law, his assertions have raised the type of questions that the Campaign Legal Center and Democracy 21 usually jump into in earnest." Matthew Yglesias, also of Atlantic Monthly, went further, calling the silence of Democracy 21, "pretty pathetic."
The deafening silence of "reform" organizations has given the appearance – "appearance" being a catch-word long used by these organizations to justify speech restrictions - of a conflict of interest between the reform organizations and McCain.
In short, they are playing politics with the law to protect preferred candidates and allies, while still criticizing and blocking those who do not share their views.
Thankfully, this conflict within the pro-regulation community has helped highlight a rift between the pro-regulation community and their traditional allies on the Left.
Matt Stoller, writing about the McCain controversy at OpenLeft.com, argues that efforts to reduce the influence of money in politics have "been explicitly proved wrong at every turn." He goes on to note that pro-regulation groups have tried "placing restrictions on the flow of money into politics is a strategy to end corruption" for more than thirty years with no success.
Instead of taking money out of politics, Stoller argues that the time has come to fight speech with speech and "empower the public with open systems and tools for making changes at the ballot box… We can win that fight by persuading people to vote for their values and by organizing."
And by freeing speech, political battles over who to put in charge of regulating speech will rightfully lose significance.