[EL] HuffPost: FEC enforcement "gag" order

Tue Jul 23 14:37:46 PDT 2013

What authorization is there for this idea that the FEC staff is empowered to "share information with the Justice Department" without approval of the Commission?

The statute only authorizes the Commission to make referrals to the Justice Department.  Not the staff.  And the Commission is only authorized by statute to make a referral if it first determines there is probable cause that a knowing and willful violation has occurred.   "If the Commission by an affirmative vote of 4 of its members, determines that there is probably cause to believe that a knowing and willful violation" of the Act "has occurred or is about to occur, it may refer such apparent violation to the Attorney General..."  2 USC 437g(a)(5)(C).

The Commission is not empowered to request that the Justice Department start an investigation at an earlier stage than probable cause.  Congress set a high bar for referrals.  It certainly did not grant any authority to the staff to make referrals to Justice.  This is so obvious to me that I do not understand the current debate.

What basis is there for the staff to make referrals in violation of 437g(a)(5)(C)?

As those of us who practice in this area know full well, the US Attorneys can appear to be politically motivated from time to time.  One only needs to look at the Justice Department's John Edwards investigation and trial to see that perhaps Congress had good reason for the FEC - not the Justice Department - to investigate and enforce federal election law up until the point that the Commission finds probable cause to believe a criminal violation occurred.

RALEIGH, N.C. - The federal prosecutor who oversaw investigations into former presidential candidate John Edwards and former Gov. Mike Easley plans to get into politics himself.  George Holding, who stepped down last week as U.S. attorney for eastern North Carolina, will run for the 13th Congressional District seat held by Democrat Brad Miller, according to Carter Wrenn, a Republican strategist who will advise Holding's campaign.  http://www.wral.com/news/political/story/9856987/

Jim Lamb
Sandler, Reiff, Young & Lamb, P.C.
1025 Vermont Ave., NW, Ste. 300
Washington, D.C. 20005
work: 202.479.1111 ext. 307
cell: 202.390.3545

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, July 23, 2013 4:36 PM
To: Craig Holman
Cc: law-election at uci.edu
Subject: Re: [EL] HuffPost: FEC enforcement "gag" order

I found your suggestion that the Democratic Commissioners boycott tomorrow's meeting to be especially intriguing:

One Democratic commissioner left in February, leaving three Republicans and two Democrats on the Commission. McGahn is hoping to take advantage of the partisan imbalance by proposing a "gag" order in new enforcement guidelines<http://www.fec.gov/agenda/2013/mtgdoc_13-21-a.pdf>, to be approved by a 3-2 majority, that would: (i) prevent FEC staff from viewing public resources in conducting their investigations, such as candidate and government Web pages, news reports, business databases and social media sites; and (ii) prohibit FEC staff from sharing information with the Department of Justice (DOJ), which handles criminal investigations of campaign finance scandals.

If the ability of FEC staff even to conduct an investigation can be hamstrung from the onset, then the Commission need not face many more embarrassing obstructionist votes. Just as importantly for those seeking to block enforcement of the campaign finance laws, the DOJ will also be hobbled in its criminal investigations.

Prior to announcement of McGahn's proposal, FEC General Counsel Anthony Herman unexpectedly resigned from the agency last month. After the announcement, Herman felt compelled to warn the FEC and the public of the pending danger to campaign finance enforcement and submitted public testimony to the Commission.

If the Republican commissioners continue to vote as a bloc on this proposal, they will effectively neuter the enforcement ability of FEC staff and hinder Justice investigations of egregious violations.

Though it is a big ask of the remaining two Democratic commissioners, they could take a page from McGahn's playbook and not show up at the next FEC meeting, thereby denying quorum and any agency decision on the gag order.

On 7/23/13 1:25 PM, Craig Holman wrote:
Colleagues:

On Thursday, July 25, the Federal Election Commission will vote on a proposal by departing Commissioner Don McGahn that would hamper the ability of the FEC staff to conduct investigations of violations of campaign finance law. As is widely known, the agency has been beleaguered by Commission deadlocked votes since 2008, preventing many an enforcement action. Among the proposals: unless the Commission approves ahead of time - (1) Prohibit FEC staff from looking at certain public resources in the conduct of investigations, such as candidate web pages; and (2) Prohibit FEC staff from sharing information with the Department of Justice, which handles criminal complaints of egregious violations of the campaign finance law. Lisa Gilbert and I have published an op-ed about this maneuver in today's Huffington Post. http://www.huffingtonpost.com/craig-holman/a-parting-shot-to-neuter_b_3641120.html

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com<mailto:Holman at aol.com>

_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

hhttp://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130723/8855f86d/attachment.html>