[EL] HuffPost: FEC enforcement "gag" order

Tue Jul 23 19:44:17 PDT 2013

That's because the statute requires "the affirmative votes of 4 commissioners" to approve advisory opinions. But that is not relevant to a quorum question. Again, the statute specifically says that the votes of a majority of the commission are sufficient for actions other than those under 437d(a) (6)-(9), which require 4 votes. Thus it would appear that a 3-2 vote (or 3-0 vote) suffices for the administrative matters on Thursday's agenda.

In other words, when their were just two commissioners, and both attended, they would constitute a majority of the Commission and could take certain actions. They could not issue advisory opinions or make RTB findings, authorize an investigation, or refer matters to law enforcement agencies and such because those tasks specifically require 4 votes (not a "majority', but "4").

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 [law-election-bounces at department-lists.uci.edu] on behalf of Trevor Potter [tpotter at capdale.com]
Sent: Tuesday, July 23, 2013 10:15 PM
To: David Keating
Cc: law-election at uci.edu
Subject: Re: [EL] HuffPost: FEC enforcement "gag" order

The FEC could not issue Advisory Opinions during the period that there were only two Commissioners. It is true that the two met in public, but I believe they could only act for themselves, not "the Commission."
Trevor Potter

Sent from my iPhone

On Jul 23, 2013, at 9:50 PM, "David Keating" <dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>> wrote:

That’s not correct.  When the SpeechNow.org<http://SpeechNow.org> AOR came up for a vote there were four vacancies on the Commission, so no more than two could show up.  They still convened meetings and voted.

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: Craig Holman [holman at aol.com<mailto:holman at aol.com>]
Sent: Tuesday, July 23, 2013 9:28 PM
To: Smith, Brad; dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>
Cc: law-election at uci.edu<mailto: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<mailto:Holman at aol.com>

-----Original Message-----
From: Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
To: David Keating <dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>>
Cc: law-election <law-election at uci.edu<mailto: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<http://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>

_______________________________________________

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

http://electionlawblog.org

_______________________________________________

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

_______________________________________________
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

<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -> To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein. This message is for the use of the intended recipient only. It is from a law firm and may contain information that is privileged and confidential. If you are not the intended recipient any disclosure, copying, future distribution, or use of this communication is prohibited. If you have received this communication in error, please advise us by return e-mail, or if you have received this communication by fax advise us by telephone and delete/destroy the document. <-->
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130724/975daa4c/attachment.html>