A recent editorial in the Washington Post makes some profoundly misleading claims about the Republican commissioners on the Federal Election Commission.
The Post complains that “wrongheaded changes to the agency’s rules” would “limit the FEC’s ability to share information with the Justice Department.” The “changes” in question would require the FEC’s general counsel to get the commissioners’ approval before referring a case to the Justice Department. What apparently escaped the Post’s attention is that federal law requires the commissioners to approve any such referral.
2 U.S.C. § 437g(c) specifies that when the “Commission refers an apparent violation to the Attorney General, the Attorney General shall report to the Commission any action taken.” Thus, federal law makes it very clear that only the “Commission” can refer matters to DOJ, and that means the commissioners must approve any such action.
The recently departed general counsel criticized commissioners for wanting to exercise their right of approval before letting him refer cases to DOJ. The FEC is fortunate he resigned — as is the American public. It is hard to excuse his ignorance on this basic legal point.
Commissioner approval is an important protection. An unfounded complaint that someone has violated federal campaign-finance laws could ruin someone’s political career, subject that person to unwanted publicity and unnecessary legal expenses, or create a faux scandal that could be exploited by a political opponent in a hotly contested election. All decisions about such matters should reside with the commissioners appointed to run the FEC and not with unaccountable, faceless bureaucrats whose wrongdoing is all too often protected by civil-service rules that make them unanswerable to the public or congressional oversight.
This problem was recently illustrated by a staff lawyer who may have violated FEC rules and confidentiality requirements by contacting Lois Lerner, a former FEC employee involved in the IRS targeting of tea-party organizations. The lawyer sought information about a conservative organization’s tax filing, yet the FEC had not even approved opening an investigation. The statute says not only that FEC matters are confidential but that it is the commissioners, not the staff, who must agree to begin an investigation.
There is great danger in letting FEC staff open investigations on an ad hoc basis without Commission approval. Such practice could easily lead to charges of improper targeting or selective prosecution. The Republican proposal, by contrast, brings staff conduct in line with the statute and with long-established FEC procedure, ensuring that it is the commissioners, and not the staff, who make such decisions.
This would in no way impede proper staff work. FEC staff would be permitted to review publicly available filings with other government agencies, and if there is a news article that cries out for action, the Republican proposal does not preclude review (contrary to the Washington Post’s claim). Indeed, under a written policy in place since 1978, the staff are supposed to bring that material to the Commission for consideration; they are just not permitted to investigate on their own.
The editorial also seems uninformed on the FEC’s procedural rules. Noting that one of the three Democratic commission slots is empty, it claims the three Republican commissioners are trying “to exploit their short-term majority” while the Democrats are “outnumbered.”
But three commissioners can’t force anything through the FEC. The votes of four commissioners are required to approve an action, including changes to the enforcement procedures that construe the statutory authorization of the FEC. Any three commissioners of the same party have to convince at least one commissioner of the other party to vote with them, which is a good thing despite the complaints of some that this can lead to stalemate. The FEC regulates one of the most sensitive areas possible: First Amendment–protected political speech and activity. The only way to ensure that members of one political party do not use the FEC’s power to launch unjustified, partisan investigations against candidates of the other political party is to require bipartisan consensus when the Commission votes on whether to open an investigation, make a finding that someone has violated the law, or refer a case to the Justice Department for criminal prosecution.
The Washington Post’s political-news reporting relies largely on government transparency. How ironic, then, that its editorial board should object to and characterize as “distorted” the GOP commissioners’ call for greater transparency regarding enforcement policies. I can tell you that, during the two years I served as a commissioner, FEC enforcement policies were not publicly disclosed and the staff fought every effort by certain commissioners to disclose those policies to the public.
FEC commissioners Don McGahn, Matt Petersen, and Caroline Hunter should be commended for their efforts to make the FEC’s regulatory and enforcement policies as transparent as possible and to force the career staff to comply with the laws and regulations governing the agency’s conduct. That is not only “good government” but the best way to deter violations of the law and safeguard the integrity of the campaign process while protecting fundamental rights guaranteed by the First Amendment.
— Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation, served on the Federal Election Commission from 2006 to 2007.