Republican FEC Commissioners Want To Make Campaign Finance Prosecutions Harder

WASHINGTON, DC - NOVEMBER 03:  Federal Election Commission (FEC) Commissioners Donald McGahn II testifies during a hearing be
WASHINGTON, DC - NOVEMBER 03: Federal Election Commission (FEC) Commissioners Donald McGahn II testifies during a hearing before the Elections Subcommittee of House Committee on House Administration November 3, 2011 on Capitol Hill in Washington, DC. The hearing was to focus on the polities, processes and procedures of the commission. (Photo by Alex Wong/Getty Images)

WASHINGTON -- Republicans on the Federal Election Commission want to make it more difficult for the Justice Department to prosecute campaign finance violations.

The proposal by the three Republican commissioners would require a full commission vote each time the FEC Office of General Counsel wants to share information with the Justice Department. This has placed the Republican commissioners into an open dispute with Anthony Herman, who was FEC general counsel until his resignation last week.

The change to how the FEC shares information with the Department of Justice comes within a proposed update to the commission's enforcement manual written by Republican commissioners Don McGahn, Caroline Hunter and Matthew Peterson. The GOP commissioners released the proposed enforcement manual update on June 27. At the same time, they disclosed partially redacted memos detailing the sometimes difficult relationship between the FEC and the Justice Department.

A vote on the new enforcement manual had been expected at the commission's next open meeting on Thursday, but a tweet from Commissioner Ellen Weintraub stated, "The FEC will not be discussing the Enforcement Manual at this week’s meeting, Thurs., July 11," with a link to the proposed agenda. Commissioners may still add the enforcement manual to the agenda in the coming days or during the Thursday meeting.

One memo, from Herman, was a 20-page objection to the enforcement manual update. The plan, wrote Herman, "would expose the Commission to allegations that politics and partisanship motivate its case-by-case decisions whether to release records to DOJ." Herman also wrote that the reason Congress created the FEC was in part to vigorously enforce federal campaign finance laws "in light of DOJ's then-failure to do so." DOJ has been criticized by ethics watchdog groups for what they say has been a failure to aggressively prosecute campaign finance violations.

Justice Department officials had no comment on the proposal, spokesman Peter Carr told The Huffington Post. Mythili Raman, the acting assistant attorney general in DOJ’s Criminal Division, testified DOJ’s investigations into campaign finance violations were “hampered” by the Supreme Court Citizens United decision.

The FEC has six seats, but one Democratic seat is currently vacant and all five of the current commissioners are serving past the expiration of their terms. Most of the commission's actions nevertheless require four votes. The vote to change the manual only requires three votes, which means it will succeed on partisan lines with three Republican commissioners supporting it.

The proposal has angered campaign finance watchdogs, including Citizens for Responsibility and Ethics in Washington executive director Melanie Sloan, who said, "It seems there's nothing Don McGahn won't do to undermine the enforcement of campaign finance laws. This is underhanded and sneaky. Hopefully it will fail."

"What this appears to be is consistent with the view of three commissioners that they don't want to see the law enforced as they put the emphasis on protecting the players out there as opposed to enforcing the law," said Larry Noble, former general counsel to the FEC and current chairman of Americans for Campaign Reform.

FEC Commissioner McGahn, who The New York Times reports is behind the proposal to limit FEC sharing with Justice, did not immediately respond to a request for comment.

Former FEC chairman Brad Smith, a conservative who has supported the deregulatory policies of the current Republican commissioners, pointed out that the current campaign finance laws require the four-vote majority for information sharing sought by the Republican commissioners.

"If you read the statute, it pretty clearly says that before things can be sent over to Justice, there needs to be a commission vote on that," Smith said.

But the FEC Office of General Counsel has long operated under a Matter of Understanding with Justice to help smooth the sharing of information. After a long and rocky relationship, that sharing increased in 2001 and 2002 under the stewardship of General Counsel Larry Norton, who decided that Justice no longer need to file "friendly" subpoenas to obtain information. This change, never crafted in writing, became standard operating procedure at the Office of General Counsel.

According to documents released by the FEC, Justice commonly seeks "responses, deposition transcripts, or even the General Counsel's Reports" when it asks for information from FEC.

A memo written by Acting Associate General Counsel for Enforcement Kathleen Guith includes examples of cases where FEC has shared information with Justice. These include investigations into potential fraudulent contributions to Rep. Vern Buchanan (R-Fla.), excessive in-kind contributions to congressional candidate Tan Nguyen and illegal contributions to Puerto Rico Gov. Anibal Acevedo Vila.



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