In the Federal Election Commission’s second-to-last open meeting of 2014, commissioners split over a measure that would prohibit agency lawyers from conducting independent investigations without prior approval from the chronically gridlocked panel.
For Chairman Lee Goodman, the agency’s top Republican, the move would simply standardize the enforcement process and ensure that commissioners, their lawyers and the respondents are all on the same page.
In Democrat Ellen Weintraub’s eyes, however, it is another veiled attempt by Republicans to block the enforcement of campaign finance laws: “If you ignore information, then it makes it easier to get to ‘no’ [action], which is the position of some folks.”
The deadlock means the status quo prevails: The FEC’s professional legal staff will be able to continue their work without a commission vote granting them permission.
By law, no party can control more than three seats on the agency, while four votes are required for official action. Battles over campaign enforcement and disclosure often fall along party fault lines, as was the case Thursday. All three Republican commissioners voted to approve the new language, while Democrats voted in unison against it.
At the heart of the disagreement is one new paragraph that would be added to the Office of General Council’s (OGC) enforcement manual. It reads, in part:
OGC acts and provides advice as authorized by the Commission. Neither the [Federal Elections Campaign] Act nor Commission regulations or directives provide a freestanding grant of independent authority to generate matters under review, investigate report or refer alleged violations of the Act or Commission regulations absent Commission regulation.
The FEC’s Office of General Counsel investigates and prepares research on potential violations of campaign finance rules. Goodman cited instances when OGC lawyers contacted individuals to respond to news articles about potential campaign violations, even though the commissioners had not signed off on any official investigation.
The revised manual would also clamp down on information sharing with other federal agencies, including the Department of Justice.
To hear Democrats on the FEC describe it, Republicans were against OGC lawyers from reading any news articles not sanctioned by their bosses.
Republican commissioner Matthew Petersen argued that the new language would only constrain which items were included for consideration in the FEC’s official documents, while new commission approval of interagency information sharing would safeguard against potential accusations of ‘selective enforcement’ (think IRS targeting of conservative groups).
Ultimately, Democratic Commissioner Steven Walther, who looked to be the only potential swing vote in the room, couldn’t approve the measure citing concerns that it would “put the commission in the middle of the enforcement part of the agency.”
The agency’s inaction was a long time coming.
An enforcement manual overhaul was a pet cause of former Vice Chairman Donald McGahn, R, during his tenure at the agency. Sunlight has been following the proposals, since they first surfaced in 2013. Now, more than a year and a half later with a new slate of commissioners, neither side appears any closer to budging.
The Sunlight Foundation was among 12 reform groups that advocated against a vote on the new manual while the FEC waited for vacant seats to be filled. The Los Angeles Times, in a piece by the editorial board, derided the effort as self sabotage by Republican commissioners.
The latest vote was spurred by pressure from the Committee on House Administration, which has jurisdiction over federal elections and had hoped for action before the end of this year.
And while the higher ups at the FEC continue to hash out their differences, there’s at least one demographic among which putting a tighter leash on OGC has bipartisan suppport: elections lawyers. Commissioner Caroline Hunter noted that Marc Elias, a chair of D.C. law firm Perkins Coie (Commissioner Weintraub’s former firm) and a top campaign lawyer to Democrats, joined his Republican counterparts in supporting the initiative in 2013.
In the same meeting, the FEC unveiled their legislative recommendations for the next congress. At the top of the list is the electronic filing of Senate campaign finance reports and electioneering communications reports, along with the authority to create a new “senior executive position,” to bring the agency’s salary structure in line with other agencies. The agency has struggled to fill top-level staff positions recently.
Meanwhile, the lack of electronic filing continues taxpayers hundreds of thousands of dollars and is one of the rare campaign finance measures that has “no counterargument” according to Weintraub. Sunlight and other reform groups have pushed for e-filing for years.
The agency also asked for authority to receive gifts of goods and services, which it currently lacks.