[EL] FEC Enforcement Manual

Mon Jul 29 14:04:32 PDT 2013

Well, Trevor, you're incorrect right off the bat. What the latter paragraphs in my missive attempted to do was explain why 3-3 votes are not a problem for the Commission (because the 3-3 partisan divide is a valuable check on partisan excess; because the statute calls for 4 votes for certain actions; because 3-3 votes are relatively rare, even now; and because in many cases 3-3 votes decide the issue as decisively as 4-2, 5-1, or 6-0 votes), but that the Commission should not artificially delay action on a matter that can be decided, under the statute, by a 3-2 majority. 

So you are wrong, once again. I do understand your efforts to call me a hypocrite, though, and will keep them in mind as we discuss this further.

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: Trevor Potter [tpotter at capdale.com]
Sent: Monday, July 29, 2013 4:36 PM
To: Smith, Brad
Cc: law-election at UCI.edu
Subject: Re: [EL] FEC Enforcement Manual

First, I take from Brad's response an admission that he has in fact changed his position --perhaps just for this one instance-- on the importance of maintaining 3-3 divisions at the FEC. He just maintains that I have changed my position in this instance as well.

Second, I have long-favored creating a "tie-breaking" mechanism for the FEC, including a non-partisan ( member of neither party, Senate confirmed) Chair who would only vote in the event of a three-three tie.  However, that is substantially different than saying that a temporary 3-2 partisan majority should be able to change Commission policies, which is what we are talking about here.

The partisan ramifications that Brad asks be identified are straightforward: Republican  Commissioners who, over the last several years have frequently voted against pursuing enforcement matters on the basis that the campaign finance laws are overly-broadly and overly-onerously written by Congress, now seek to limit the circumstances in which the staff of the Commission might identify publicly available evidence of violations that would push the Commission towards more rigorous enforcement, and in which the Department of Justice might independently pursue violations that the Commission has refused to, or done without conclusion. Thus, the proposed policy changes would enable the Republican Commissioners to implement their policy preferences over the more enforcement-minded ones of the Democratic Commissioners. It is true that the deregulatory results that the Republican Commissioners seek may benefit Republican and Democratic violators equally, but they still advance a Republican campaign finance agenda over a Democratic one.

Trevor Potter

Sent from my iPad

On Jul 28, 2013, at 9:44 PM, "Smith, Brad" <BSmith at law.capital.edu> wrote:

> I recall Trevor's passionate arguments on this listserve that the Commission couldn't function and get things done, and that it constantly "deadlocked" 3-3.  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, Trevor suddenly favors inaction, precisely so that when the matter finally does come up for a vote, the Commission will "deadlock" 3-3:
>
> Interesting change in view, indeed.
>
> Of course, there is a difference, which is that I have never suggested that the Commission should simply delay action on matters until one side or the other thinks it has  a more favorable voting bloc in place. Moreover, the bipartisan nature of the Commission is shaped by statute. The statute requires 4 votes to take action on enforcement matters and regulations (and on opening investigations and referring matters to law enforcement agencies). It does not require 4 votes on matters of internal procedure. Regulations that have the force of law, and enforcement matters against parties, are far greater opportunities for partisan abuse of the law. Indeed, interestingly, no one has explained how this matter has partisan ramifications that make it important to delay voting.
>
> Some interesting changes of view are more easily accounted for than others.
>
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault
>   Professor of Law
> Capital University Law School
> 303 E. Broad St.
> Columbus, OH 3215
> 614.236.6317
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________________
> From: Trevor Potter [tpotter at capdale.com]
> Sent: Sunday, July 28, 2013 5:33 PM
> To: Smith, Brad
> Cc: 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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>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
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