[EL] FEC Enforcement Manual

Sun Jul 28 20:41:10 PDT 2013

I'm not understanding why there is anything to vote on - the statute is clear - 4 votes are needed before the Commission - not staffers - can refer anything to DOJ.  

----- Original Message -----
From: Trevor Potter [mailto:tpotter at capdale.com]
Sent: Sunday, July 28, 2013 02:33 PM
To: Smith, Brad <BSmith at law.capital.edu>
Cc: law-election at UCI.edu <law-election at uci.edu>
Subject: Re: [EL] FEC Enforcement Manual

I recall Brad's passionate defense on this listserve of the wisdom of the Commission's three- three composition, and the resulting requirement of a bi- partisan vote of four to take action, from the same source. Now that Chair Weintraub has argued that the FEC should wait to vote on a major procedural matter until the Democratic vacancy has filled and the Commission again has a three- three composition, Brad suddenly favors action by a partisan  ( GOP) vote:

> 
> I imagine that a vote of a majority of the Commission could overrule the Chair on bringing a matter to a vote.

Interesting change in view...

Trevor Potter

Sent from my iPhone

On Jul 27, 2013, at 10:19 PM, "Smith, Brad" <BSmith at law.capital.edu> wrote:

> Commissioner McGahn has put out an excellent memorandum on the subject. http://www.fec.gov/members/mcgahn/statements/13-21-k.pdf.
> 
> The Commission should go ahead and vote. I am unaware of any time in the past when any Chair of the Commission has refused to allow a vote on a matter pending new Commissioners being appointed - which even now has no clear date.
> 
> I imagine that a vote of a majority of the Commission could overrule the Chair on bringing a matter to a vote.
> 
> 
> 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: Jim Lamb [Lamb at sandlerreiff.com]
> Sent: Saturday, July 27, 2013 9:55 PM
> To: Smith, Brad; law-election at UCI.edu
> Subject: RE: FEC Enforcement Manual
> 
> I agree.  The statute is clear that 4 votes supporting a finding that there is probable cause of a knowing and willful violation are required under 2 USC 437g(a)(5) before any apparent violations can be referred to DOJ.  I imagine that any person serving as a commissioner would be surprised if staff persons were making referrals without first requesting and obtaining Commission approval as required by the statute.
> 
> ________________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad [BSmith at law.capital.edu]
> Sent: Saturday, July 27, 2013 4:55 PM
> To: law-election at UCI.edu
> Subject: Re: [EL] FEC Enforcement Manual
> 
> One thing that is being overlooked in this is why the Commissioners need to vote on the two "controversial" aspects at all. The statute prohibits the FEC from launching an investigation or referring matters to other law enforcement agencies without a vote of 4 Commissioners. Commissioners have complained about OGC doing the former for years - the latter seems to be a more recent phenomenon. But OGC does it anyway.
> 
> The question is, is any vote needed on these two issues? It shouldn't be. The OGC needs 4 votes to act, not 4 to prohibit it from doing these things. It is a sad sign of the times that the Commission has to work so hard to reign in its own staff.
> 
> 
> 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 Rick Hasen [rhasen at law.uci.edu]
> Sent: Saturday, July 27, 2013 1:55 PM
> To: law-election at UCI.edu
> Subject: [EL] ELB News and Commentary 7/27/13
> 
> “House Committee Chair Blasts FEC For Failing to Act on Enforcement Issue”<http://electionlawblog.org/?p=53587>
> Posted on July 27, 2013 10:52 am<http://electionlawblog.org/?p=53587> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> Bloomberg BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=33260161&vname=mpebulallissues&jd=a0e0d7z3w9&split=0>: “House Administration Committee Chairman Candice Miller (R-Mich.) in a July 26 statement criticized the Federal Election Commission’s failure to vote on an enforcement manual guiding staff in the FEC Office of General Counsel (OGC).”
> 
> [cid:part5.09080004.08050201 at law.uci.edu]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53587&title=%E2%80%9CHouse%20Committee%20Chair%20Blasts%20FEC%20For%20Failing%20to%20Act%20on%20Enforcement%20Issue%E2%80%9D&description=>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
> 
> 
> --
> 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
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