Roll Call: McGahn: Courts, Constitution Limit FEC’s Mission

FEC member Don McGahn defends free speech and the Constitution.

Recall, Citizens United v. FEC was a simple case about whether a nonprofit association was “permitted” to distribute a documentary movie via video-on-demand. Reformers urged the commission to take a staunchly regulatory position (Ornstein himself filed a brief that claimed the movie could be banned). And let’s also recall: The government itself claimed it had the authority to ban books.

Faced with such unyielding extremism, the court did the only thing it could: It ruled in favor of liberty, and against the government. And they did so in a way that was not limited to a pay-per-view movie; instead, the court’s broad pronouncements limit the ability of the government to regulate in the area of politics generally.

Let’s be clear here: The FEC has been on the losing end of a series of recent challenges to its constitutional authority. The FEC lost the Wisconsin Right to Life challenge. It lost the Davis challenge. And it utterly fell on its face in losing Citizens United. In each case, the Supreme Court limited the FEC’s jurisdiction and gave it clear instructions not to reach out and zealously enforce more but to act with solemn respect and caution for the First Amendment rights of our citizens.

The court’s criticism of the old ways of the FEC was direct, pointed and unambiguous. And the wisdom of the Supreme Court’s rulings is simple: An overzealous FEC is bound to trample speech deemed integral to a healthy civil society. Or as Chief Justice John Roberts put it, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” As an FEC commissioner, I am bound by my oath to follow controlling precedent of the Supreme Court — including its logic — regardless of whether Ornstein likes certain case law.

Read the rest of the article in Roll Call.