As written in the early 2000s.
To the author, the FEC responses appear to be pro forma assurances to the public that if a person broke Federal Election Campaign Laws, that person would potentially be subject to legal action. From the broad wording used by their spokesman, it is not clear that there was a specific intent by the FEC to threaten the Browne campaign with legal action. However, MSNBC.com had raised the issue with the FEC. As of March 15, the FEC had been notified that the issue existed.
What legal action? The FEC could levy civil penalties. The FEC does not actually prosecute criminal cases. It refers cases to the Justice Department, which prosecutes. This distinction between FEC and Justice Department roles leads, with some regularity, to an incorrect claim that there is no criminal hazard associated with violating FEC regulations. Not true. There is an extensive hazard of criminal prosecution for adequately egregious offenses. It’s just that the Federal bureaucrats whose duty it is to try to throw perpetrators in prison do not happen to work in the FEC’s offices.
Through the remainder of the week, the Browne Campaign’s position on filing continued to gather publicity. Browne appeared at State Conventions, on talk radio, and gave press interviews. On Saturday, March 18, Investor’s Business Daily covered the Browne Campaign’s FEC boycott with their lead editorial.
The importance of the Investor’s Business Daily editorial is difficult to overstate. For starters, the United States of America has four serious national newspapers, namely the New York Times, the Wall Street Journal, USA Today, and Investor’s Business Daily. (There are also supermarket tabloids that employ highly competent professionals, but whose topical focus is normally more clintonian in nature.) You can get all sorts of local press, some very important, but there are only four daily newspapers that are routinely available from coast to coast.
What are these newspapers? The Times, a full-coverage paper, is the newspaper of the liberal establishment. USA Today, the other full-coverage newspaper, represents the party of mildness. The Wall Street Journal, while primarily a financial newspaper with vast tables of stock and bond data, is the Main Street businessman’s conservative Republican newspaper. Investor’s Business Daily, the Wall Street Journal’s chief competitor as a publisher of fiscal tables and financial news, targets selectively the entrepreneur and the active investor. Its near-million circulation is drawn heavily from the well-to-do, the powerful, and the influential.
One might expect entrepreneurs and takers of active rather than passive risk to be open to the Libertarian message. Indeed, with some regularity transparently libertarian positions are advocated on the Daily’s editorial pages. It is perhaps surprising that Libertarian candidates and party groups, especially at the Federal level, have never recognized the Daily as an appropriate location for advertising, to the extent that it is directly or indirectly open to political advertising.
The Daily’s editorial was relatively sympathetic to the Libertarian Party. After noting that the Gore and Bush campaigns were pursuing campaign reform, characterized by the Daily as “questionable Constitutional thinking”, the Daily observed that “a corrective may be on the way. If it comes, it will take the form of a court challenge from one of the oddball, small parties.” The Daily in particular supported Browne’s call for secret campaign donations: “That’s the same logic that provides for the secret ballot, and it’s hard to contest.” The Daily emphasized that Browne had not committed himself to civil disobedience, neglecting to note that such civil disobedience was already under way. Of the Libertarian Party, the Daily said “We do not ourselves embrace the whole of the Libertarian Platform.”
The IBD editorial may not have landed directly on the front doorstep of every FEC Commissioner. It is an overwhelmingly excellent bet that the editorial went directly to at least some of the Commissioners or their senior staff, and that FEC internal methods and their clipping service filled any gaps in the circulation. If the FEC did not take notice, its inaction was assuredly not due to ignorance. Once the IBD editorial appeared, the FEC was virtually certain to be aware of Browne’s position.
The Browne Campaign derived multiple benefits from its announcement. On one hand, defying the Federal government at risk of fine or imprisonment is a fine piece of macho flash. Browne faced party critics who felt that he was too bland, and that an uncompromising anarchocapitalist like L. Neil Smith would be a better candidate. When he considered risking a jail sentence, Browne showed that he could take the extremely hard-line stands wanted by part of the purist wing of the party. On the other hand, Browne’s announcement that he had refused to file was an excellent fundraising stunt. It put him in a positive light as a man who could take positive, direct steps to confront issues. The refusal was so spectacular that it distracted readers from questions they might otherwise have asked, questions like “Where is the advertising rollout?” and “What happened to the $750,000 reserve fund?”
Via the IBD editorial the Browne campaign garnered for itself and the Party a substantial level of publicity. As many libertarian observers have noted, you get earned (free) press when you do something to earn it. Browne had finally done something to earn press, and had reaped the benefit.
Above all else, the Browne Campaign’s announcement meant that the Campaign would not file FEC statements, at least for some time. The announcement meant that the Browne Campaign’s critics could not compare the Campaign’s claims with the actual state of affairs. The announcement meant that the Libertarian faithful, the Party loyalists who would be going to Anaheim to vote for the Party’s Presidential candidate, would have no way to learn that the Browne campaign’s fabulous financial reserves were indeed a fable.
Finally, perhaps not by plan, the non-filing announcement gave the Browne campaign an effective way to distract the Party faithful from the campaign’s actual activities. No sooner had the Campaign announced its plans not to file and to collect large donations than a red flag went up. Long-time Libertarian activist, critic of the National Party establishment, and Attorney Jacob G. (‘Bumper’) Hornberger put out an extensive e-mail. In an message dated March 16, Hornberger warned Party members that there were potential legal consequences to breaking Federal Election laws and FEC regulations.
