Former FEC Chairman Don McGahn is back in private practice and ready to take on campaign finance regulations from a new perch.
C&E: Looking back on your time as chairman at the Federal Election Commission, what actions do you see as the most consequential?
Don McGahn: Given that I just left, I’m a little close to it to really know for sure. What people tell me is that one of the lasting impacts will be the changes to agency procedures that govern enforcement actions and audits, and dealing with the reporting folks at the FEC. These were rewritten and otherwise created from scratch. Having been a lawyer with the experience of defending people before the commission, I understood what it was like to deal with the FEC from that perspective. I thought the place was in much need of some due process. So now, unlike it was when I got there, if you’re accused of wrongdoing, you have the opportunity to actually appear before the commissioners and make your case. When I got there, allowing that to happen was a very radical concept.
Second, what gets lost in most coverage of the FEC is any sort of nuance. It’s always the reform groups versus the First Amendment purists. And that’s great for editorial boards, but it really has nothing to do with those who actually run campaigns for a living. For those who do campaigns, they realize there’s been a lot of positive change. Things have been simplified. Some of these are little things like allowing party committees to raise additional money for recounts. That sort of thing probably wouldn’t have happened if I wasn’t at the commission, because it really took a lawyer to come in and argue the case. Marc Elias argued that before the commission, and then it took a commissioner who understood why this mattered and explained it in terms that other commissioners understood.
C&E: How much resistance did you encounter on issues like that?
McGahn: It was clear to me when we first talked about the idea of a litigation fund for redistricting there was a lot of resistance to it. It was the discussion at the table that I think persuaded the Democratic commissioners. I recast the issue away from the politics and presented it as what it really is, which is civil rights litigation. Party committees then will be able to use money for voter contact, which is really the name of the game. Polling is another example. People are running around talking about needing disclaimers on polls. You don’t need that. Polls are not designed to push message; they test message. Many people confuse push polls with real polls, and we wrote a whole piece on the difference. There was a lot of confusion at the FEC about this before I got there. They assumed every poll that tested any sort of message was a push poll. They were also confused over standard polling questions.
C&E: These are members of the commission who weren’t clear on what constitutes a push poll?
McGahn: Yes. And this is not directed at any one commissioner. At other administrative agencies, appointees are generally people who have actually practiced or have been in the field. You would probably not put me in charge of the Federal Energy Regulatory Commission. But historically at the FEC, and this has really been egged on by the so-called good government groups, the powers that be have rarely appointed people who have actually worked on campaigns. It’s as if the NFL went to mainland China to get their referees. At the staff level, I found culture shock. Hopefully we’ve at least given people at the FEC a little more understanding about how campaigns work.
C&E: You’ve been pegged as one of the most controversial chairs in the history of the commission. Do you think that fits your tenure at the FEC?
McGahn: I think it was Gene Simmons from KISS who said, “There’s no such thing as bad publicity.” I guess it means I had an impact. I was certainly different because of my background, and I think what people assumed before I got to the commission is not what they saw once I got there. The reformers claimed I was just going to be a party hack. They also went around town and said I was basically a lightweight when it came to knowing my stuff. Then it got much worse for them, because it turned out that not only was I not a party hack, I actually knew my stuff. And when you read many of the early opinions we put out, it’s amazing how similar what I was saying from day one was to what the courts eventually said in many respects.
The reformers never issued a letter of apology, and they never said they were wrong, but we all know they were flat wrong, and that I beat them at their own game. Secondly, the criticism backfired on them in many ways. I think they figured I would see this stuff in the newspapers and start moving to the middle. Actually, it pushed me to the flank and it made me stronger. And the more they screamed, the more I knew I was doing the right thing, particularly on stuff that impacted party committees and candidates. How many court cases can the reformers lose before they go away?
C&E: There’s clearly no love lost between you and the reform folks. It sounds personal to you.
McGahn: It’s personal in that I really believe that a two-party system is the best way to run the show. It has been a real stabilizing force in our democracy for a couple hundred years. When you look at Europe a hundred years ago, the parties were not particularly stable. You just had a bunch of fringe parties. We don’t want to go there. You can say the two-party system is horrible, but there isn’t one that works better. The left doesn’t like big corporate power; the right doesn’t like big government power, but we’re all fighting the power in our own way. The reformers are really wholly irrelevant in a lot of ways, but they make a lot of noise and they just get in the way. Many of their policies are also just wrong. A lot of the stuff we did at the FEC was not to protect the two party system; third parties tended to get a yes from me very quickly. The reformers just don’t like the system, period. They say they’re nonpartisan, but they’re actually to the left of the Democratic Party. I just don’t see them as particularly relevant.
C&E: What’s your focus now that you’re back at Patton Boggs?
McGahn: My bread and butter are campaigns and party committees. I’ll be a natural fit to do that sort of work. I’m also going to be representing a variety of nonprofits, some are going to be overtly politically-active, some will not. I’m also going to do some litigation challenging various rules and regulations, both at the federal level and the state and local level. I already have a client who has asked me to take a hard look at trying to attack some overdone state regulation of their activities. It’s a little different than what I had done before, but it makes sense given my work at the FEC.
C&E: What’s the state of the parties at the local level? What’s their biggest struggle in the current campaign finance environment?
McGahn: They’re struggling because of McCain-Feingold. This was something myself and others explained at the time—McCain-Feingold was going to be very bad for parties in a number of ways. First of all, the resources parties have are a drop in the bucket compared to what else is out there. If you raised $3 million in a House race 10 years ago, you were in a strong position. But now you have candidates raising $7 or $10 million for a House race, and yet the parties have more restrictions placed on them. The federal election activity concept that’s been imposed on state and local parties makes no sense. As I explain it in lay terms, you have to use hard money if you want to do anything that actually matters as a state or local party. Generic GOTV, list development—these are the basic things parties do. It’s all federalized now.
There are some who run around—academics of the reform ilk, primarily—who say that if you look at the total numbers, parties are actually raising more than they did at the time McCain-Feingold passed. What they miss is how much advertising costs now. I’m stunned at how much the cost per point has skyrocketed. You’re getting less bang for your buck, and the parties are losing big time. What I predicted would happen is exactly what has happened: single issue groups have emerged, and well-entrenched incumbents are losing primaries to their flanks.
One of the things I was excited about when I was at the NRCC was that the political guys would work me into the recruitment process to answer questions from candidates. If you were a businessman and worried about self-funding or had questions about campaign finance issues, I could explain things in plain English. A big part of that pitch was that if you run, the party will have resources to help. We could do coordinated activities or the state party might do a GOTV program. There might be a volunteer mail program. The party can still do all that, but they often don’t have the money. So the enticement to get the right kind of candidate isn’t there anymore. The parties just don’t have the money or the infrastructure they once had to really be grassroots organizations.
C&E: Despite the changes during your time there, what else would you do to remake the commission if it was entirely within your power to do so?
McGahn: I think the general idea of a bipartisan commission is sound. That tends to be what others identify as the problem. But those are the same folks from the bell-bottom era—the platform shoe-wearing reformers. What Congress created was a bipartisan agency. They didn’t create a nonpartisan agency. Congress was very wise in that in order to really do anything at the FEC, you need bipartisan support. That means both sides have to compromise and bring different perspectives to the table. What has developed at the FEC is this culture of being nonpartisan. They should take the statute of the shelf and read it once in a while. The commissioners are in charge at the FEC, not the staff.
So the real changes I would make would be at the staff level. For one, the current staff structure is virtually identical to the structure there in 1978. You have a very large enforcement division that used to investigate corporate speech, overhead allocation ratios, and all sorts of things the courts have said are no longer illegal, and yet the commission maintains the same amount of infrastructure. Second, the FEC culture is very siloed. The enforcement lawyers don’t talk very much to the reporting and analysis people, and they don’t talk to the audit people. That’s changed a lot over the last five years, which started before I got there. [Former FEC Chairman] Bob Lenhard did quite a bit of good when he was at the commission when it came to trying to get folks to work together. The idea behind all of this is that you’re helping people comply, rather than playing gotcha. I would continue to try to open that up and tear down many of the bureaucratic fiefdoms that have evolved over 35 years of agency inertia.
C&E: The power of the staff is one of the many things people don’t quite understand about the commission.
McGahn: Absolutely. The staff is quite powerful, and different aspects of that power manifest in different ways. Part of the procedural changes I put in, or that the commission put in at my suggestion, were designed to get the staff under control. There were situations in the past where you may get audited by the commission, and once you get in the audit process, it could go on for years. There was no way to come back to the commission and suggest that the auditors were going down the wrong road. That happened to me as a defense lawyer. So what we have now at the FEC is a procedure where if you think the auditors are going down the wrong road with a legal theory, you can bring it to the commission. It’s not in the staff’s interest to actually be able to run wild, because then they aren’t seen as having the credibility they need to actually do their job.
C&E: So now that you’ve moved on from the commission do you have more time for the rock band?
McGahn: I do have more time for it on the one hand, but I have less time personally because my life has changed a lot in the last five years. I went into the FEC single and living in an apartment with my own law practice. Now I’m married with a 2-year-old son, and I have a whole new life. I’d rather stay home and play with hot wheels cars than be the biggest thing in Dewey Beach. We’ve been there and done that. We are transitioning to weddings and limited engagements, though. So if anyone reading this needs a band for their wedding, give me a call.