Tempers flare as FEC postpones votes on contentious issues yet again


In what might almost be dubbed a summer repeat of its last meeting, the Federal Election Commission sidestepped consideration of a pair of controversial issues while ruling on relatively minor ones.

Votes on whether non-federally regulated contributions (i.e. 'soft money') can be used by an organization affiliated with the Democratic Governors' Association (DGA) and what rules will govern the way FEC staff conduct investigations will be delayed until a future episode.

As previously reported by Sunlight, the DGA is seeking the FEC's approval of its plans to create a separate 527 organization, Jobs & Opportunity, that could raise funds outside of the stipulations of the 2002 Bipartisan Campaign Reform Act (BCRA) but use it for activities that might impact federal elections, like get out the vote operations. That law prohibits state officeholders–incluidng governors–from raising soft money to influence federal elections.

A recent editorial from the Baltimore Sun raised concerns that the measure would create another faucet for special interest cash to flow into campaigns — and that it could potentially open the door for soft money to finance electioneering efforts on the federal level. But Marc Elias,  DGA's counsel in the matter, contends that BCRA was never intended to "federalize state campaign finance law" and further that Jobs & Opportunities has no interest in influencing federal elections. 

Vice Chairman Donald McGahn, a Republican member of the FEC, argued that the statute clearly excluded non-officeholding employees of groups like the DGA from its soft money prohibitions, while Chairwoman Ellen Weintraub, a Democrat, worried that a favorable advisory opinion would do "too much," allowing state pols to circumvent one of the few remaining restrictions on how big money enters the political system. 

Ultimately, the FEC's move to postpone its advisory opinion stemmed from disagreement amongst Commissioners over the amount of independence that Jobs & Opportunity must demonstrate from its gubernatorial counterpart. 

Elias recently submitted an official comment, offering a footnote that would explicitly require that Jobs & Opportunity remain a separate legal entity from the DGA if it were to continue to raise soft money. Commissioner Steven Walther, a Democrat, found the footnote insufficient to prevent Jobs & Opportunity from becoming an 'alter-ego' of the DGA, and wanted more time to discuss the matter with other commissioners.

Expressing annoyance at the drawn out process —  the advisory request was first filed in June — McGahn pushed for some assurance that the issue would finally be resolved at the next meeting in time for upcoming gubernatorial races in New Jersey and Virginia. The FEC will meet again on Sept. 12.

After drawn out discussion on the DGA issue, the Commission moved relatively quickly through the rest of its agenda: Advisory opinions for the American Veterinary Medical Association (AVMA) and the Special Operations Speaks PAC (SOS), and memorandums from the FEC's audit division. 

Tempers flared however, at the meeting's close. As chair, Weintraub has exercised her authority to set the agenda by repeatedly postponing a vote on the adoption of a new enforcement manual for the Office of General Counsel, the FEC's staff of attorneys and investigators. As previously reported by Sunlight, the new manual would require the staff counsel to confer with the commissioners before conducting outside research like reading news reports or communicating with other departments in the executive branch.

McGahn has been a vocal proponent of the new manual, and asked Weintraub why the vote had been delayed and what precedent existed for the chair to indefinitely postpone a vote. The question led to a terse dialogue between the two ranking commissioners.

While Weintraub would not respond directly to McGahn's question, she did affirm that she "expect[ed] [McGahn] knew what was going on here." McGahn is close to the end of his tenure as Commissioner. He will be be replaced as soon as an FEC nominee clears the Senate confirmation process. Weintraub may intend to put off the enforcement fight until the new lineup of commissioners are in place.

Weintraub did not state if she had plans for bringing the new manual to a vote in a future meeting.

(Photo Credit — Wikimedia Commons)