Criticism of Project 2025’s Reforms of Federal Election Commission Is Ill-Informed, Dangerous

Those attacking me for my participation in Project 2025, for which I wrote the chapter on how the Federal Election Commission should be run, reveal their dangerous views approving of government overreach and abusive conduct by government law enforcement agencies. 

There’s no other way to interpret their criticism of me other than their disagreeing with all of the recommendations I make in Chapter 29 of The Heritage Foundation’s “Mandate for Leadership 2025.”

For those who don’t keep up with the multitude of alphabet-soup federal agencies, the FEC is an independent federal agency run by six commissioners (three Republicans and three Democrats) nominated by the president and confirmed by the Senate. The FEC has civil enforcement authority over the federal campaign-finance laws that govern the raising and spending of money in federal campaigns for Congress and the presidency. 

The Justice Department has criminal enforcement authority, which comes into play for knowing and willful violations of the law.

The Federal Election Campaign Act (FECA) is byzantine in its complexity, and many of its provisions are confusing, contradictory, or ambiguous. But it’s the FEC’s job to civilly enforce that law and to issue regulations implementing it. 

It’s important to understand what the FEC is regulating in what I pointed out in my chapter is “one of the most sensitive areas of the Bill of Rights: political speech and political activity by citizens, candidates, political parties, and the voluntary membership organizations that represent Americans who share common views on a huge range of important and vital public policy issues.”

So, what are the reforms my critics are disparaging and denigrating? 

As a former FEC commissioner myself, I recommend that the president only nominate commissioners for the FEC who demonstrate a commitment to ensuring that the FEC: 1) does not act beyond its statutory mandate; 2) construes confusing and ambiguous provisions against the government, not candidates and the public; and 3) does not infringe on protected First Amendment activity.

So, my detractors clearly want a federal agency, one with law enforcement authority that can sanction you with civil penalties, which won’t pay any attention to the statutory limits on its law enforcement power. They want an agency that will go after you for supposedly violating the law when the law is unclear and it’s not possible for a reasonable person to know that their behavior may violate the law.

And they have contempt for the freedoms guaranteed by the First Amendment and think the FEC should not worry about the constitutional protections afforded to every American.

What else did I say that was so objectionable to the detractors of Project 2025 that they label it an “anti-democracy agenda?” I pointed out that while a president does not control the FEC, he does control the Justice Department. It’s fundamentally unfair for “overzealous government prosecutors” to “prosecute individuals who are unable to determine if they are violating the law” because the federal law is confusing, contradictory, or ambiguous. The Justice Department should “only prosecute clear violations of FECA.”  

What is so radical and antidemocratic about that? In fact, it’s the contrary view that’s radical and antidemocratic and leads to the weaponization of the justice system. 

Oh, and here is another recommendation I made that irresponsible critics call a “troubling suggestion.”

Imagine the situation you could find yourself in if you have two different federal agencies disagreeing completely on what the law allows. One agency tells you that what you are doing is perfectly legal, but another tells you that what you are doing is illegal. That second agency then criminally prosecutes you for taking an action that the other agency advised you was legitimate and not a violation of the law.

Sound like a nightmare? It’s a nightmare that can happen, since enforcement of federal campaign finance law, as I noted earlier, is divided between the FEC and the Justice Department.

My “troubling suggestion” is that the president should direct the Justice Department “not to prosecute individuals under an interpretation of the law with which the FEC—the expert agency designated by Congress to enforce the law civilly and issue regulations establishing the standards under which the law is applied—does not agree.”

How is that antidemocratic? Why is that troubling? Why would anyone believe, as the critics of Project 2025 apparently do, that putting a candidate, a member of the public, or anyone else who participates in the political arena into such a quagmire is a sound way of running the government or a fair way of exercising its law enforcement powers? 

Only those who believe in giving federal law enforcement agencies unlimited power to control the political playing field that’s an essential element of the democratic process would take that view.

Their real fear is that if Project 2025 is implemented by a new president, it will restrict the overreach of powerful government agencies and bureaucrats, making them accountable to voters and the leadership they elect to run the executive branch, and pulling them back from interfering in the everyday lives of Americans. That is what permeates all of the unjustified, hysterical broadsides launched at the project.

Everything I wrote in my chapter on the FEC is common sense to anyone except the jaded power-hungry elites in Washington and their political comrades in the national media.

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