Posted September 28, 2006 by J. Gerald Hebert

Chairman Toner: What Were You Thinking?

It is not surprising to see noted campaign finance reform critic Robert Bauer pen yet another tirade about the successes of the Bipartisan Campaign Reform Act. However, it is surprising to see the current chairman of the Federal Election Commission, Michael Toner, join Mr. Bauer in thumbing his nose at enforcing the campaign finance laws.

Unfortunately, it is actions like Toner’s that put the FEC at the top of everyone’s list as the most ineffective federal agency in our government. And Federal Election commissioners like Mr. Toner, who fail to understand that it is their duty to enforce the law and not to create legal loopholes for those seeking to evade the law, are the main reasons that the agency occupies that lofty position. Imagine if the Internal Revenue Service commissioner were to write an op-ed criticizing the tax laws and suggesting taxpayers should feel justified in engaging in income tax evasion? Apparently, Chairman Toner feels there would be nothing wrong with such behavior.

Mr. Toner, who chaired the recent hearing on BCRA’s electioneering communication provisions at the FEC and who participated in the vote (the proposal he supported failed), has now joined with one of the leading anti-regulation advocates, who assiduously lobbied the agency on that issue, to publicly urge his colleagues to reconsider their votes.

Let’s start with a few corrections to the Bauer-Toner piece. The authors begin by claiming that BCRA “will prohibit certain political ads from running during the last 60 days before Congressional elections.” The law does no such thing. It simply requires that corporations and unions use political action committee money to pay for their ads that mention federal candidates just before an election, so the American public will see who is paying for the ads and to ensure that the amounts of money being contributed are not so large that they create the appearance they are buying special favors or influence from officeholders and candidates.

Thus the authors’ use of the term “broadcast ban” is not only a misnomer, it is an attempt by them to foster the impression the law bans speech. It does no such thing, and they know better. But they continue to use such terms to foster their intended deception.

They then make the claim that the so-called ban applies to “grass-roots lobbying” — a term they fail to define. Of course, they don’t define it, because if they did, they would have to admit that the corporate and union so-called grass-roots lobbying ads they want to exempt from BCRA’s electioneering communication provisions are the same old sham issue ads that prompted Congress to enact BCRA’s electioneering communications provisions in the first place.

Even in characterizing the Supreme Court’s decisions, Toner and Bauer get it wrong. They write, for example, that those who support campaign finance laws minimize the harm on free speech, insisting that only a few of these “grass-roots lobbying” ads run immediately before elections and that they may be paid for by PACs. According to Bauer and Toner, “the Supreme Court recently rejected this view.” The court did no such thing.

The case they are referring to is Wisconsin Right to Life v. FEC. In that case, WRTL wanted to use its general treasury funds to run a broadcast ad critical of Sen. Russ Feingold (D-Wis.) just before the 2004 primary and general elections in Wisconsin. Nowhere in WRTL did the Supreme Court opine on the constitutionality of applying the electioneering communications provision to the ads at issue in that case, as Toner and Bauer claim. Nor did the Supreme Court state or even imply that an exemption from BCRA’s electioneering communications provisions for so-called grass-roots lobbying ads might be appropriate.

Toner and Bauer conveniently ignore that their desire to create a blanket exception in the campaign finance laws for so-called grass-roots lobbying ads already has been expressed to and rejected by both the Supreme Court and the FEC that Toner chairs. First, in its rulemaking proceeding immediately following the passage of BCRA in 2002, the FEC rejected proposals to create a grass-roots lobbying exception, on the ground that such an exception would undermine the statute.

Then, in the McConnell case upholding nearly all of BCRA’s provisions, the plaintiffs contended that the electioneering communications provision should be unconstitutional because it would categorically eliminate corporate treasury funding of grass-roots lobbying. Moreover, the plaintiffs in McConnell offered specific ads that typified the type of grass-roots lobbying that, plaintiffs claimed, unconstitutionally fell within the ambit of BCRA’s electioneering communications provision. After considering these and other so-called issue ads and concluding that “the vast majority” of such ads had an electioneering purpose, the McConnell court rejected the very argument that Toner and Bauer attempt to resurrect here (540 U.S. at 206). Their previously rejected legal arguments are like kudzu: No matter how many times you cut them back, they soon return.

If Toner and some of his colleagues on the FEC would use as much intellectual energy to enforce campaign finance laws as they expend trying to create huge loopholes in those same laws, perhaps the FEC would not be criticized as an impotent, toothless watchdog. Mr. Bauer’s job is to represent political parties and politicians, many of whom dislike BCRA, so it is expected he would look to create or find every last legal loophole. But it is shocking for a sitting commissioner to join forces with him in such endeavors. And it is equally outrageous for a sitting commissioner to advocate for creation of legal loopholes with an attorney who regularly appears before the commission and submits matters such as these for adjudication.

(This piece was published in Roll Call September 28, 2006)