[EL] FEC

Thu Dec 20 19:17:40 PST 2012

Re the comment below, "A Cry for Help at the FEC," the "knowledgable reader", in my view, is either not too knowledgable about the FEC, or is being intentionally misleading.

He notes two questions in a lengthy request for comments.

One question is whether the FEC can initiate enforcement actions based on "publicly available information." Whether it can depends on how one reads 2 USC 437g (a)(2), which states that the Commission may i launch an investigation "upon receiving a complaint... or on the basis of information ascertained in the normal course of carrying out its supervisory responsibilities." The question is whether that latter clause refers to carrying out its duties - that is, receiving reports, conducting audits, - or whether it can include simply reading the papers. I tend to think that the former is more likely as a reading of the text, and also accords more with the statutory intent, which viewed the FEC as more of a hybrid, congressional ethics agency than an executive branch enforcement agency. That latter conception was blown up by Buckley, but that does not change the intent for purposes of reading the statute.

Either way, the FEC has long declined to pursue enforcement matters absent a complaint. The reasons for this, beyond the apparent statutory limitations, are many, but three stand out: 1) the FEC's complaint driven workload keeps it busy - it doesn't have the resources to pursue more complaints - and almost any campaign finance issue that garners major public attention becomes the subject of a complaint; 2) a great deal of "publicly available information" (which usually means newspaper clippings) is incorrect and/or incomplete; and 3) the Commission has long recognized that a policy of pursuing investigations based largely on these press accounts, which can be planted by campaigns, would in fact further politicize the agency. At no time during my years on the FEC, at least to me or to my knowledge in any public or general fashion at the FEC, did the Counsel's office ever express an interest in pursuing cases based on "publicly available information."

Second, "can the FEC consider public information other than what's specifically in a complaint?" The answer here is obviously yes, and it does so all the time. I assume that the reader means to ask "in deciding whether to make a 'reason to believe' (RTB) finding, the predicate to launching an investigation, can the FEC consider public information other than what's specifically in a complaint?" This takes us back tot he first question.

Here's that full statutory language:

If the Commission, upon receiving a complaint under

paragraph (1) or on the basis of information ascertained in the normal course of carrying out its supervisory responsibilities, determines, by an affirmative vote of 4 of its members, that it has reason to believe that a person has committed, or is about to commit, a violation of this Act or chapter 95 or chapter 96 of title 26, the Commission shall, through its chairman or vice chairman, notify the person of the alleged violation. Such notification shall set forth the factual basis for such alleged violation. The Commission shall make an investigation of such alleged violation, which may include a field investigation or audit,

This would seem to suggest that the FEC may not "make an investigation" until it has made an RTB finding. Clearly it can consider information outside the face of the complaint, in the sense of reviewing the information it has obtained in the normal course of carrying out its supervisory activities. But can it do more? In fact, the Counsel's Office has long conducted investigations of public material - including official records - before presenting information to the Commission itself for a possible RTB finding. Sometimes this involves considerable expenditure of resources, and even more often delays clearing innocent parties that have been subjected to complaints, whether filed in good faith or filed as part of a political vendetta or campaign tactic. These Pre-RTB investigations go far beyond what might be deemed facts of which one could take judicial (or administrative) notice.

Far from seeing this as a "cry for help" from the Counsel's Office, this reads to me like an effort by commissioners to draw attention to the practices at the FEC as a means to build support for internal reforms. This has been a long term project that began in the FEC nearly a decade ago, and which has received support from both Republican and Democratic Commissioners, to evaluate the FEC's procedures. This lengthy process began after years - decades really - of ignoring an ABA Report highly critical of FEC procedures as violative of the statute and due process norms, and a long period of stasis in the agency's procedures, during which period the FEC had developed an enormous case backlog and was routinely ridiculed by the "reform" community as ineffective and dilatory.

Those of us who have been long interested in true reform at the FEC look positively on this request for comment.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________

From: Rick Hasen
Sent: ‎December‎ ‎20‎, ‎2012 ‎4‎:‎48‎ ‎PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 12/20/12

A Cry for Help at the FEC?<http://electionlawblog.org/?p=45610>
Posted on December 20, 2012 4:34 pm<http://electionlawblog.org/?p=45610> by Rick Hasen<http://electionlawblog.org/?author=3>

A knowledgeable reader points me to this item<http://www.fec.gov/agenda/2012/mtgdoc_1289.pdf> on today’s FEC meeting agenda asking for public comment on certain aspects of the FEC’s enforcement process. (The request for public comment was approved 4-2.)  The reader writes: “I see it as a cry for help from the General Counsel’s Office, which is asking for public comment on two basic issues: (1) can the FEC consider public information other than what’s specifically in a complaint and (2) can the FEC initiate enforcement actions based on publicly available information even if no one files a complaint? Both are long-standing practices that the Republican commissioners, especially Don McGahn, have been trying to stamp out.”

Do others see it this way too?  I’m not close enough to the process to know.

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