[EL] HuffPost: FEC enforcement "gag" order

Tue Jul 23 18:35:12 PDT 2013

And why would a majority of the Commission not constitute a quorum?

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: Craig Holman [holman at aol.com]
Sent: Tuesday, July 23, 2013 9:28 PM
To: Smith, Brad; dkeating at campaignfreedom.org
Cc: law-election at uci.edu
Subject: Re: Re: [EL] HuffPost: FEC enforcement "gag" order

Even the fec must begin business with a quorum. What likely happened in
the speechnow situation, David, is that quorum was lost in the course
of the meeting and no one made a quorum call. That is why in the
scenario I prescribe the two democratic commissioners must not show up
in the beginning of a meeting to avoid quorum. If they showed in the
beginning, making quorum for business to start, then left in the middle
of the meeting, there would be no one left to make a quorum call,
allowing business to be settled by whoever remains.

Nationals are losing 5-1, and we are now in the 8th inning. But the weather cooled off, so we are all keeping quorum here.

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

-----Original Message-----
From: Smith, Brad <BSmith at law.capital.edu>
To: David Keating <dkeating at campaignfreedom.org>
Cc: law-election <law-election at uci.edu>
Sent: 23-Jul-2013 21:11:22 +0000
Subject: Re: [EL] HuffPost: FEC enforcement "gag" order

Actually, 2 USC 437 (c) states "All decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this Act shall be made by a majority vote of the members of the Commission... except that the affirmative vote of 4 members of the Commission shall be required in order for the Commission to take any action in accordance with paragraph (6), (7), (8), or (9) of section 437d(a)."

There is no quorum requirement in the statute, and it wouldn't make sense that a quorum had to be more than a majority of the Commission, since the majority can take action on anything that doesn't fall within 437d(a) (6)-(9). I do not recall if there is an internal directive that includes a quorum requirement, but I don't think so. For those interested, paragraphs 6, 7, 8, and 9 of 437d(a) are, respectively (6) initiate, defend, or appeal lawsuit;
(7) render advisory opinions
(8) develop forms and issue regulations
(9) "to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities."

I find it ironic that "reformers" are always criticizing Commissioner McGahn (as they once did me, and as they did before me Commissioners Sandstrom and Mason and several others) for "refusing to enforce the law," when Commissioner McGahn seems much more interested in enforcing the law than they do.

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: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of David Keating [dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>]
Sent: Tuesday, July 23, 2013 8:20 PM
To: Rick Hasen; Craig Holman
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] HuffPost: FEC enforcement "gag" order

As far as I know and from a quick search of the FEC regulations for the word quorum, there is no quorum requirement for a meeting.  In my SpeechNow.org AOR, the commission met when there were only two members and they voted on the AO drafts.  Needless to say, none of the drafts got 4 votes.

David

_________________________________________________

David Keating | President | Center for Competitive Politics

124 S. West Street, Suite 201 | Alexandria, VA 22314

703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax

www.campaignfreedom.org<http://www.campaignfreedom.org>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto: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<mailto: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>

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Rick Hasen

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UC Irvine School of Law

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