Speech regulators have been frustrated by the failure of recent campaign finance legislative proposals, including the DISCLOSE Act in 2010 and 2012. Given their legislative impotency, it is hypocritical for them to criticize the FEC for “failing” to do through regulation what Congress has not done through legislation. As an administrative agency, the FEC can only promulgate and enforce rules under authority delegated by a statute that has been severely narrowed by the courts.
The agency’s harshest critics disregard the agency’s prime enforcement directive: Enforce the law as it is, not as some wish it to be. On the hot-button issue of coordination, for example, critics fault the agency for not acting even on the thinnest circumstantial allegations of improper coordination. Under long-standing coordination rules, however, certain conduct is required for a conclusion that a communication is coordinated, and more than mere speculation of such conduct is needed to launch an enforcement action.
Donald F. McGahn and Caroline Hunter and Matthew Petersen - POLITICO.com
