[EL] FEC Enforcement Manual

Tue Jul 30 07:15:45 PDT 2013

Well that's my point, Sal: it's inappropriate for the FEC Chair to simply hold off voting in the hopes of gaining a more favorable voting block down the line. 

This is not something being rushed through - to the contrary, it is a matter that has progressed in the normal course over a lengthy period of time, including notice and comment periods. 

I certainly would not disagree that people do use delay, and I think that there are times when delay is appropriate for a wide variety of reasons. I also think that delay is generally less appropriate in the administrative side of government than the elected side. Nor does the hypocritical use of arguments make the arguments themselves incorrect.

I disagree with Sal that "it just doesn't pass the smell test that he [me] would not use every tool at his disposal to delay the implementation of guidelines he disagrees with knowing that a nominee would soon be confirmed who could prevent it."

Of course, we never know what people will do until they face the test. That's how we learn whom really has integrity. Making that judgment before hand is an error. You don't know me that well, Sal. So that comment may be more of an window into your standards than mine. 

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: Sal Peralta [oregon.properties at yahoo.com]
Sent: Tuesday, July 30, 2013 1:23 AM
To: Smith, Brad
Cc: Trevor Potter; law-election at UCI.edu
Subject: Re: [EL] FEC Enforcement Manual

So far as I can tell, most political partisans are unabashedly hypocritical in about 90 percent of the process debates that they engage in publicly.  One need only look at the last two filibuster debates for a case in point.  Both sides appropriated the other side's behaviors and arguments from the moment the balance of power shifted in the Senate.

 To steal a turn of phrase from Humphrey Bogart, "I don't mind a hypocrite in politics.  I object to a sanctimonious one."

Regarding Brad's comments... it just doesn't pass the smell test that he would not use every tool at his disposal to delay the implementation of guidelines he disagrees with knowing that a nominee would soon be confirmed who could prevent it.  Not doing so would be political malpractice.  I mean, what's the point of delaying confirmation of nominees if not to slow down the pace with which policies you disagree will be implemented or to push policies through while there is still a window?

My point in mentioning this is less intended as a slap at Brad or Trevor, who are all honorable men, than it is a more general comment about how annoying our politics have become.

 My question for the list is whether anyone has any data about the degree to which public perceptions about the kinds of hypocrisy we see in debates similar to this one contribute to the relatively low regard the public has for congress and our politics more generally.

Sent from my iPad

On Jul 29, 2013, at 11:04 AM, "Smith, Brad" <BSmith at law.capital.edu> wrote:

> 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
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
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