Blog — Federal Agencies

July 11, 2016

We’re Still Waiting on Explanations From the Republican FEC Commissioners

By Stuart McPhail

The Federal Election Commission (“FEC”) has been heavily—and rightly—criticized for its failure to enforce federal campaign finance laws.  New research by Citizens for Responsibility and Ethics in Washington (“CREW), however, shows an additional—and even more basic—area where a number of FEC commissioners are failing in their jobs:  the three Republican commissioners have repeatedly failed to fulfill their legal obligation to explain their decisions to block enforcement.

According to research by CREW, the three Republican commissioners have failed to issue an explanation for their votes against authorizing investigations of or sanctions for possible campaign finance violations in at least sixteen cases before the agency since 2009.  Two commissioners, Caroline C. Hunter and Matthew S. Petersen, issued no explanation for their votes against FEC staff recommendations to pursue an investigation of or sanctions for possible campaign finance violations in all sixteen cases.  Commissioner Lee E. Goodman, who was appointed in October 2013, failed to explain his votes against the FEC’s staff recommendation to investigate in six of those cases.  Commissioner Goodman’s predecessor, Commissioner Donald F. McGahn, failed in nine of those cases to explain his votes against staff recommendations—with some votes now more than seven years old—before he left the agency.

CREW’s research revealed no similar failure on the part of the three Democratic and independent commissioners.  That is likely because an explanation is not required from the commissioners who vote to adopt the FEC’s staff recommendations, or from those commissioners who vote to authorize action in cases that the staff do not recommend pursuing.  Further, where a majority of the commission votes against staff recommendations, the obligation to prepare an explanation falls on the FEC staff.  In cases where there is a deadlock, however—for example, where the three Democratic and independent commissioners find themselves at odds with the Republican commissioners—the obligation to produce an explanation falls on the commissioners who voted not to proceed:  typically the Republican commissioners.

CREW identified the cases by searching the FEC’s enforcement database for matters generated by third-party complaints with certification votes occurring after January 1, 2009, the first year when a majority of the current commissioners held office.  CREW utilized FEC guidance and practice to locate those cases missing a required explanation. 

The commissioners’ explanation is an important part of the agency’s process.  Before the agency can investigate a possible violation of campaign finance law, four members of the Commission—a six-member panel consisting of three Democrats and three Republicans (one of the Democratic slots is currently filled by an independent)—must vote to authorize the investigation.  The commissioners vote on recommendations brought to them by the FEC’s Office of General Counsel (“OGC”), the agency’s legal office consisting of nonpartisan staff attorneys who are experts in the field of campaign finance law.  The OGC may recommend an investigation based on its conclusion that there is a “reason to believe” a violation may have occurred.  This is a low standard under federal law:  it simply means the agency believes a violation has been credibly alleged and may have occurred and that the agency wants to take a closer look.  It does not mean that a violation has been found.  Nor is it the Commission’s final say over the proceeding.  After the investigation, the OGC recommends whether to find “probable cause to believe” a person has committed a violation—a higher standard of proof than that imposed at the initial “reason to believe” stage—and the FEC may seek sanctions only if a majority of the Commission agrees with the OGC’s assessment.   If three or more commissioners do not agree with either the OGC’s recommendation to investigate or its recommendation to find probable cause based on that investigation, those commissioners must explain their rejection of the staff’s expert opinions. 

That explanation, called a statement of reasons, is an essential part of the commissioners’ responsibilities.  First, it explains the commissioners’ understanding of the law to the parties in the case and to the public.  That explanation allows the parties and others to better predict future enforcement.  It also serves a vital role in ensuring public accountability for the agency.  The statement of reasons is the Commission’s explanation for concluding that enforcement was unnecessary.  Only if the public has that statement can people decide whether the Commission is adequately doing its job.  

Second, and of vital importance with regard to an agency that the past chairwoman described as “worse than dysfunctional,” statements of reasons by commissioners voting to block agency proceedings are critical to ensuring the Commission adequately protects the integrity of our campaigns and elections by allowing for meaningful judicial review of the FEC’s inaction.  Federal law authorizes individuals who bring a complaint to the FEC, and who have their complaint dismissed, to seek judicial review of that dismissal.  A court may then determine whether the dismissal is based on a permissible interpretation of law or reasonable application of agency discretion, or whether it instead reveals the agency’s unsupported failure to protect voters’ interest in clean elections. 

In a world in which, as one Republican campaign finance attorney described it, there is “virtually no enforcement of the campaign finance laws,” that ability to seek judicial compulsion of FEC enforcement is imperative.  Federal campaign finance law, rightly or wrongly, allows a three-vote faction of commissioners to refuse to authorize an investigation or a sanction.  While the four-vote threshold helps ensure investigations and enforcement enjoy bipartisan support, it also creates a very real risk of under-enforcement as a partisan or ideological faction may stymie any proceeding.  So federal law appropriately allows complainants to seek judicial review in those situations to challenge dismissal so that courts can ensure the FECA is not abandoned to partisan gridlock.

A court can only review the propriety of the agency’s dismissal, however, if it has an explanation for the agency’s action.  As then judge Ruth Bader Ginsburg explained, “[a]bsent an explanation by the [c]ommissioners for the FEC’s stance, [courts] cannot intelligently determine whether the Commission is acting ‘contrary to law’” in violation of federal statute.  Where the commissioners reject the informed judgement of their staff, the commissioners themselves must provide that explanation. 

Further, time is of the essence, as federal law provides for only an extremely small window of time during which an unsuccessful complainant can challenge the FEC’s dismissal.  Under federal law, the complainant must file a lawsuit within sixty days or forgo its right to seek judicial relief.  The commissioners’ refusal to issue statements of reasons within those sixty days severely prejudices complainants who may lose their right to a day in court.  And it prejudices the public, whose rights to open and honest campaigns and government are undermined when the FEC fails to do its job. 

Unfortunately, CREW is all too familiar with the commissioners’ failure to carry out their obligation to explain themselves.  In January, CREW sent a letter to the commissioners to protest their lack of explanation for dismissing CREW’s complaint about former presidential candidate Herman Cain’s campaign committee.  The Commission inexplicably deadlocked on CREW’s complaint, even after it originally voted unanimously to authorize an investigation into CREW’s allegations. The OGC’s investigation revealed evidence of wrongdoing and resulted in a recommendation to pursue a penalty against the committee.  Again, the three commissioners who voted to terminate the proceedings against the committee refused to explain their obstruction.  They finally issued a statement 112 days after voting to dismiss the complaint, but only after CREW’s protest.

CREW was again required to object to the commissioners’ failure to issue a statement of reasons in May when the same three commissioners failed to timely explain their votes against OGC recommendations to investigate possible campaign finance violations by Newt Gingrich—the former House Speaker and current potential running mate of the presumptive Republican nominee—as well as his corporation, campaign committee, and wife.  The commissioners again only issued a statement of reasons after CREW protested—releasing an explanation almost one year after voting against the OGC recommendations and three months after the Commission voted to close the file on Gingrich. 

The commissioners, however, should not require a letter of protest to make them to do their jobs.  There should be no ideological divide on the duty of government officials to explain themselves to the public, yet three commissioners have failed to do so at least sixteen times in recent years.  The public has a right to know why these commissioners are standing in the way of enforcement of federal campaign finance laws.  We’re waiting for an explanation.  

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