Before reforming the FEC look at Montana’s mess

Contemporary media parlor games revolve around fantasy sports and politics. Yet for politics, press interest in money raised and spent often seems more important than who will win and how policies might change.

One corollary to the political-money obsession is the complaint that Federal Election Commission enforcement for alleged wrongdoers is too feeble. Critics say its bipartisan structure hampers its ability to regulate all this spending. But the commission’s structure is no accident. As the Center for Competitive Politics noted last year, it was part of the fallout from President Nixon’s partisan skullduggery. Nixon built an enemies list. The White House implemented a staff memo to “use the available federal machinery to screw our political enemies.”

{mosads}Despite the ominous history, progressives insist campaign regulation requires a strongman. A fearless enforcer, imposing Congressional will. Someone who will take the law to its most speech-limiting extreme. And leave pesky constitutional concerns to others.

Enter the We The People Act (WTPA) recently proposed by several Senate Democrats. The bill would replace the FEC with the Federal Election Administration. The FEA Chair would become the new speech police chief; administering campaign law with increased enforcement and investigatory powers. The FEA would also have four other members, two from each party. The Chair would serve a ten-year term (other members, six), supposedly guaranteeing independent power.

But power when regulating campaign speech is no virtue. Congress need not enact WTPA to see this model’s deleterious effects. Our democratic laboratories already created one.

Montana has a regulatory structure reformers have longed desired. A single unelected commissioner answerable to no political body investigates complaints. He refers cases to the county attorney for fines three times the alleged violation. If the county attorney refuses, the commissioner can settle or proceed on his own. He can remove candidates from the ballot and decertify an election. If a case goes to court, the commissioner both prosecutes and serves as expert witness.

Current commissioner Jonathan Motl has received plaudits from leftwing allies for patrolling speech. The targets have a different take. “Whether I want to subject myself to a tyrant who is supposed to be a referee will be a major factor on whether I decide to serve the state of Montana anymore,” said Sen. Jennifer Fielder. “I have no doubt he will use the power of his office to come after conservatives like me.”

Numbers illustrate her concern. Of Motl’s twelve litigated cases, all are against Republicans or conservative groups. Most involve a nonprofit active in the 2010 state elections. A jury found one target, Art Wittich, guilty of accepting $20,000 in coordinated contributions. His campaign supposedly benefited from below-market direct-mail rates (other evidence suggests the vendor profited).

Wittich’s legal fight cost him around $200,000 in fees and fines. By comparison, lawmakers earn $83 a day for the 90-day sessions every other year. Motl delayed, then dismissed a similar coordination complaint against Democrat Governor Steve Bullock. Public records reveal Motl has coordinated with his office.

Motl is unapologetic. In one opinion he says, “There can be no excuse for instances of failing to report …  in-kind contributions.” And, “Montanans have long expressed their majoritarian view for open and fair elections with maximum reporting and disclosure of money spent in elections.”

But his pre-commission three-decade activist career tells a different story. He represented various leftwing groups in complaints involving a 1996 ballot initiative (I-125). The commissioner held Motl responsible for compliance obduracy. “[T]he two key players in the I-125 campaign, Jon Motl and C.B. Pearson, have, until recent months, resisted and delayed providing crucial information related to this investigation … After Mr. Motl was repeatedly advised that the … responses were inadequate and incomplete [he] … finally produced several boxes of crucial documents … almost a year after specific written requests for information were submitted.” The commissioner also rebuked Motl for not reporting — yes — in-kind contributions.

“From Joseph McCarthy to Richard Nixon to Lois Lerner, government has never been trustworthy to regulate speech and association fairly and without any hint of partisan bias,” states FEC Commissioner Lee Goodman. The power required for terrorism or narcotics trafficking is inapt for investigating political expression.

Montana shows the danger of setting strongmen lose to prosecute political minutia. Deadlock in defense of free speech is no vice.

Paul H. Jossey is a campaign finance lawyer and an Adjunct Fellow at the Center for Competitive Politics.

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