New Republican FEC commissioner nominee, same old smears from the opposition

Issue One, a group that advocates for taxpayers to pay for politicians’ campaigns and for one-party control of the currently bipartisan FEC, claimed there are “serious concerns as to whether he will be fully committed to enforcing the law.” Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, similarly complained that Trainor’s appointment would make it difficult for the FEC to “enforce reasonable campaign finance laws and rules.”

These are standard lines of attack on Republican FEC nominees. I dealt with these groups myself when I was nominated to the FEC back in 2000. The “reformers” simply declare, without evidence, that any nominee who doesn’t agree with them is “refusing to enforce the law.” This saves them the trouble of having to actually engage on the difficult question of what the law actually is, and how it applies to particular facts, and they know that most reporters will credulously report their utterances regardless.

In fact, Trainor is one most respected campaign finance lawyers in the country. He knows the law quite well, and that may be what worries “reformers.” In a hit piece on Trainor at Salon, for example, Amanda Marcotte complained that “Trainor is good at his job.” She was upset that in one case in which the Texas Ethics Commission (the state’s political regulatory agency) sought to expand its jurisdiction to regulate one of Trainor’s clients, “after a four-year battle, the [commission] threw in the towel.”

That’s supposed to be a criticism. Heaven forbid an FEC commissioner also is a lawyer who actually wins his cases against government efforts to regulate political speech.

There is good reason to have a skeptical voice in the room when government officials debate how to enforce campaign finance laws. While most Americans support campaign finance “regulation” in the abstract, that support tends to plummet when voters are asked about specifics regulations. And the Federal Election Commission is all about specifics.

Americans may agree that we should limit “special interest” influence on campaigns, or that “the rich” have too much sway. But they rebel when speech by organizations they support is limited by government regulation, whether they be Planned Parenthood or Right-to-Life, the Environmental Defense Fund or the Chamber of Commerce. They support “disclosure” (and of course, all federal campaign spending and all contributions to candidates, parties, PACs, and “super PACs” higher than $200 are, in fact, already disclosed) but they oppose compulsory disclosure of their own personal information.

The Supreme Court has long recognized that regulating political campaigns—who can say what, who can contribute, how much they can spend—touches on “the core of our electoral process and of the First Amendment freedoms.” And this is particularly dangerous because both congressional incumbents and congressional majorities have a strong incentive to use regulation of campaigns to reduce political competition and hinder opposing views. Again and again, the court has struck down campaign finance laws for violating the First Amendment.

It is good to have FEC commissioners who appreciate free speech and the constitutional constraints on the agency, and who won’t use harebrained interpretations of the law to try to expand the FEC’s jurisdiction into all parts of civic life. A little First Amendment sensitivity in a regulator is a good thing.

So the “reform” groups can claim that Trainor is not prepared to “enforce the law,” but the real question is: are “reformers” prepared to live within it? Do they respect the First Amendment? Their record is not a good one.

Bradley A. Smith is a contributor to the Washington Examiner’s Beltway Confidential blog. He is chairman and founder of the Center for Competitive Politics and served on the Federal Election Commission from 2000 to 2005.

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