AGENDA DOCUMENT NO. 13-J.l-K. 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

July 25, 2013 

MEMORANDUM 

TO: 

FROM: 

The Commission 

Donald F. McGa1uVV/') 

Vice Chairman ~-

2013 JUL 25 AM 9: 52 

AGENDA ITEM 

For Meeting of 1·...25- 13 

SUBMITTED LATE 

SUBJECT: Background Information Regarding Proposed Enforcement Manual 

Attached is a memorandum that provides additional background information and support 

for adoption of Agenda Item No. 13-21-A. This document is intended to assist the Commission 

and the public in understanding more fully the basis for the differences between the proposed 

enforcement manuals currently on the agenda. I therefore request that this document be placed 

on the agenda for July 25, 2013 as Agenda Document No. 13-21-K. 

Attachment 
BACKGROUND INFORMATION REGARDING PROPOSED ENFORCEMENT 

MANUAL 

Currently before the Commission for consideration are two proposed draft 

enforcement manuals that would govern the conduct ofthe Commission's Office of 

General Counsel ("OGC'') in connection with the Commission's enforcement functions. 

This is the next step of an ongoing effort to correct what many have complained of for 

years, 

1 and what I encountered first hand when first appointed five years ago: that much 

of the FEC's business was being conducted in secret, on an ad hoc basis, and that the 

agency lacked publicly-available procedures that governed both the Commission and its 

staff. 2 Due process was a foreign concept, and the idea of ensuring that those accused of 

wrongdoing had a meaningful opportunity to be heard by the Commission was anathema 

to many. Commission history and precedent was difficult and at times impossible to 

uncover. Most of the FEC's closed enforcement cases were not available on-line. Even 

the Commission's own procedures, codified in what are called Directives, were not 

readily available to the public. Most troubling, the staff viewed the Commission as an 

obstacle to be overcome, and not the deliberative body vested with decision-making 

authority that the Act contemplates. 

Given the ad hoc nature ofthe internal workings of the FEC, several 

Commissioners believe that it is incumbent upon the Commission to adopt formaL 

publicly-available policies. The contemplated enforcement manual is yet another 

example of this long process, which has resulted in the Commission publishing a 

multitude of new policies and procedures to achieve two shared goals: (1) increase 

transparency of agency operations, and (2) provide much needed due process for those 

accused of wrongdoing. Now, there is a meaningful opportunity to be heard during the 

audit process, 

3 the reports analysis process,

4 the advisory opinion process,

5 and 

throughout OGC's enforcement process.

6 Such change, although at times contentious, 7 

was achieved in a bi-partisan manner. 

8 

1 See generally FEC Enforcement Procedures Hearing (June I I, 2003 ), available at 

http://www.fec.gov/law/policy.shtml#guidance. 

2 See generally Public Hearing on Agency Procedures (Jan. 14-I 5, 2009). available at 

http://www.fec.gov/law/policy/enforcement/publichearingO I I 409 .shtml. 

3 See Procedural Rules for Audit Hearings. 74 Fed. Reg. 33,140 (July 10. 2009) available at 

http: www. fec.gov law cfr ej compilation 2009 notice 2009- I 2.pdf. 

4 See. e.g, Policy Statement Regarding a Program for Requesting Consideration of Legal Questions by the 

Commission, 76 Fed. Reg. 45,798 (August I, 201 I) available at 

http: www. fec.gov law. cfr ej compilation 20 I I notice 20 I 1-1 I. pdf. 

5 See Notice ofNew Advisory Opinion Procedures and Explanation of Existing Procedures, 74 Fed. Reg. 

32, I 60 (July 7, 2009) available at http: WW\\ .fec.gov law cfr ej compilation 2009 notice 2009-11 .pdf. 

6 See. e.g. Agency Procedure for Disclosure of Documents and Information in the Enforcement Process, 76 

Fed. Reg. 34,986 (June 15,201 I) available at 

http: www.fec.govilaw cfr ej compilation. 20 II notice 20 ll-06.pdf; Amendment of Agency Procedures 

for Probable Cause Hearings, 74 Fed. Reg. 55,443 (Oct. 28, 2009) available at 
As is inevitable with any deliberative body, there remain a few areas of 

disagreement with respect to the manual: (I) the staffs desire to investigate without 

Commission approval, and (2) the staffs desire to be the sole decision-maker with 

respect to providing information with other law enforcement authorities. With respect to 

the first point, the Act does not permit an investigation to occur until the Commission, 

through an affirmative vote of at least four of its members, finds that there is a reason to 

believe (''RTB'') that a violation has occurred or is about to occur. 

9 With respect to the 

second point, staff wants a radical change: that they make the decisions regarding the 

sensitive issue of dealing with other law enforcement, removing the Commissioners from 

the decision-making process. The statute says otherwise, vests ultimate decision making 

with the Commission, and precludes the delegation of that power. 

Staff, in an effort to justify their policy preference, has issued a twenty page 

policy polemic that barely references the statute. 10 OGC spills much ink on a 

http: :www.fec.gov law:cfr ej compilation 2009 notice 2009-24.pdf; Agency Procedure for Xotice to 

Respondents in Son-Complaint Generated ,\1atters, 74 Fed. Reg. 38.617 (Aug. 4, 2009) available at 

http: www.fec.gov law:cfr ej compilation 2009 notice 2009-18.pdf. 

7 In fact, during the deliberation of one request for feedback from the public, the Chair declared that it was 

"a waste oftime." Open Meeting Dec. 20,2012, Discussion of Request for Comment on the Enforcement 

Process, available at http://www.fec.gov/agenda/20 12/agenda20 121220.shtml. 

8 See. e.g., Notice of Request for Comment on the Enforcement Process, Certification dated Dec. 20, 2012 

(approved by a vote of 4-2); Policy Statement Regarding a Program for Requesting Consideration of Legal 

Questions by the Commission, Certification dated July 21, 20 II (Commission voted 6-0 to approve the 

policy); Agency Procedure Following the Submission of Probable Cause Briefs by the Office of General 

Counsel, Certification dated Oct. 6, 2011 (Commission voted 5-0 to approve the procedure); Directive 68 

(Enforcement Procedure). Certification dated Dec. 17.2009 (approved by a vote of6-0); Consideration of 

Policy to Place First General Counsel's Report on the Public Record. Certification dated Nov. 19, 2009 

(approved by a vote of6-0); Agency Procedure for Notice to Respondents in Non-Complaint Generated 

Matters, Certification July 16, 2009 (approved by a vote of 6-0); Procedures for Audit Hearings, 

Certification dated June 26, 2009 (approved 6-0). 

9 2 U.S.C. § 437g(a)(2). See also II CFR § III.IO(a). 

10 See Memorandum from Anthony Herman. General Counsel. and Daniel A. Petalas, Associate General 

Counsel for Enforcement to The Commission, on Information Sharing with the Department of Justice (June 

17. 20 13), available at http: www. fec.gov agenda 201.3 mtgdoc 13-21-d.pdf. Tellingly, staff does not 

begin to confront the Act or Commission regulations until page 18 of a 21-page document. !d. By way of 

background, several Commissioners across the political spectrum had asked OGC several questions related 

to their dealings with law enforcement. In lieu of answering those questions- which to date remain 

unanswered- OGC on its own chose to issue its own policy document, with the full intent that it made 

public. Given that OGC does not vote, it is odd that stafffeel entitled to weigh in on a Commission-level 

policy decision with their own views. after having then implement those views unilaterally. Even more 

bizarre is the idea of lawyers thinking they exist separate and apart from their client, and that somehow 

their own personal views can take precedence of those of the client. This illustrates the much deeper 

problem with OGC: when convenient, they claim to be the counsel for the Commission. the self-proclaimed 

"non-partisan" purveyor of objective, dispassionate legal advice; but other times. when it suits their needs. 

they act as if they are their own independent branch of the government. with their own policy-making 

inherent authority. The Act could not be clearer: OGC is hired by the Commission. and it is the 

Commission that is vested with decision-making authority. 

2 
noncontroversial proposition: that the FEC ought to provide information requested by 

DOJ in connection with an ongoing criminal probe. No one questions this. The 

Republican proposal does not preclude this, and, despite OGCs arguing against insisting 

on a formal grand jury subpoena, suggests a return to that practice. OGC then conflates 

this with the separate issue ofthe FEC providing information to DOJ in the first instance. 

OGC seeks to centralize that decision-making power in itself, despite the Act 

unambiguously vesting such power with the Commission. Unfortunately, OGCs tome 

has caused much ofthe recent oversimplified news coverage, and has created the 

misimpression that we have proposed ending FEC cooperation with the Department of 

Justice. This is wrong- the FEC has cooperated with the Department of Justice and 

nothing in our proposal will change that. In fact, as DOJ has already publicly stated, the 

FECs ability to work with DOJ has improved significantly over the past several years. 

11 

And pursuing matters that involve so-called giving in the name of another has been one 

of the few areas where the Commissioners have found substantive bipartisan 

agreement. 12 

The issue that ties together both points of our disagreement with OGC concerns 

the internal relationship between FEC Commissioners and their staff. FEC staff has 

functioned under what they have themselves called an ·'organic'' process (meaning 

evolving and ad hoc), and as they recently admitted, staff practice has ''not been 

uniform.'' 13 Several Commissioners, myself included, find this unacceptable, and believe 

that there must be written, Commission-approved policies that governs staff conduct, so 

as to assure the public that staff are operating under a set policy, and are not tempted to 

act in either a partisan or political manner. One need look no further than recent 

revelations regarding the Internal Revenue Service to appreciate what can occur in the 

absence of such standards. 14 Not surprisingly. staff has resisted, and in some instances, 

11 See, e.g. Letter from Sheldon Whitehouse, Jeanne Shaheen, AI Franken. Charles Schumer, Jeff Merkley, 

and Tom Udall to The Honorable Ellen Weintraub. Chair, and The Honorable Donald F. McGahn II, Vice 

Chairman, Federal Election Commission at I (July 15. 2013) ("In written testimony prepared for a hearing 

before the Senate Judiciary Committee Subcommittee on Crime and Terrorism on April 9 of this year, 

Acting Assistant Attorney General for the Criminal Division of the Department of Justice Mythili Raman 

described several major campaign finance prosecutions, many if not all of them assisted by information 

sharing from the FEC."). 

12 See, e.g, MUR 5758 (Pierce O'Donnell) ($272,000 contingent penalty); MUR 5784 (Morton Grove 

Pharmaceuticals, Inc.) ($9,000 in penalties); MUR 5818 (Feiger, Fieger. Kenney, and Johnson, P.C.) 

($131,000 in penalties); MUR 5849 (Kathleen Cannon) ($15,000 in penalties); MUR 5871 (Thomas W. 

Noe, eta/.) ($65,000 in penalties); MUR 5927 (Joseph A. Solomon) ($6,400 in penalties); MUR 5955 (Dr. 

Jose Valdez) ($30,000 in penalties); MUR 6184 (Skyway Concession Company. LLC) ($4,000 in 

penalties); MUR 6186 (Mark Leggio) ($6,000 in penalties); MUR 6463 (Jack Antaramian, eta/.) ($31,000 

in penalties); MUR 6234 (Arlen B. Cenac, Jr. eta/) ($170,000 in penalties). 

JJ Email from Anthony Herman to the Commissioner's Offices (Apr. 15, 2013), available at 

http://www.fec.gov/agenda/20 13/mtgdoc _13-21-e.pdf. 

14 See, e.g., David Sherfinski and Stephen Dinan, IRS Auditor Reaffirms That Conservatives, .\'at Liberals. 

Were Targeted, Wash. Times (June 27, 2013) available at 

http: \\Ww.washingtontimes.com news 2013 jun 27 irs-auditor-reaffirms-conservatives-not-liberals3 
has outright refused to acknowledge that the Act vests decision making authority with the 

Commissioners. Congress has already made the policy choice: the Commissioners make 

the decisions, not the staff. 

A. House Administration and the Enforcement Manual 

In many ways, the genesis ofthis debate was an oversight hearing held by a 

subcommittee of the House Committee on Administration in November of2011. 15 

There, it was confirmed that the Commission lacked a current, publicly available, 

comprehensive manual governing OGCs conduct during the processing of enforcement 

matters. OGC had something that purported to be an old enforcement manual, but it had 

never received Commission approval, and included a compilation of additional policies. 

Troublingly, this compilation was not consistently followed by OGC, nor did it address 

the whole ofthe Commission's enforcement process, leaving many important parts 

vulnerable to the ad hoc decision-making of staff. 

Not surprisingly, House Administration expected better, and insisted that the 

Commission (1) make public OGC's hodge-podge of enforcement procedures, and (2) 

adopt a comprehensive enforcement manual to govern its future process. In response, the 

Commission tasked OGC with drafting a new manual for Commission consideration. 

The Commission also began the process of seeking public comment on its enforcement 

procedures. 16 A number of helpful comments were received, many of which stressed the 

statutory limitations placed upon the Commission -and, in particular. the Office of 

General Counsel- in its enforcement role. 17 

OGC's initial work on the draft manual was completed more than one year after 

the House Administration hearing, in January of 2013. Several Commissioners set to 

work to incorporate a number of the helpful suggestions received by experts and 

practitioners in the field into OGC's draft. For the most part, it is those changes that 

differentiate the competing manuals. A number of Commissioners asked for the 

consideration of the manual to be placed on the Commission's agenda. Despite the 

Chair's initial refusal and delay, and after House Administration repeatedly inquired as to 

w ?page=all; Stephanie Condon, IRS Progressive groups flagged. but tea party bigger target, CBS News 

(June 27, 2013) available at http: www.cbsne\\ s.com 8301-250 162-57591358 irs-progressive-groupstlagged-but-tea-partv-bigger-target ; Mark Hemingway, IRS's Lerner Had History of Harassment. 

Inappropriate Religious Inquiries at FEC, May 20, 2013, Weekly Standard, 

http: '' ww. weeki vstandard.com blogs irss-lerner-had-histon -harassment-inappropriate-rei igiousinguiries-fec 72500-f.html?page= I. 

15 Federal Election Commission: Reviewing Policies. Processes and Procedures: Hearing Before the 

Subcomm. On Elections of the Comm. On H Admin., !12th Congress 2 (Nov. 3. 2011 ). 

16 See Notice 2013-0 I: Request for Comment on Enforcement Process. 78 Fed. Reg. 4081 (Jan. 18. 2013 ). 

17 See Comments Received on Enforcement Process (2013). available at 

http://www. fec.gov/law/policy/enforcement/20 13/20 13commentsreceived.shtml 

4 
its status, the manual is- at long last- before the Commission for consideration and 

approval. 

As the Chair explained during the FEC's public meeting of June 27,2013, there is 

a tremendous amount of agreement among Commissioners as to most of the manual; 

indeed, the vast majority of the competing proposals are identical. 18 The disagreement 

over the remaining portion is substantial and covers two important topics: (I) who can 

authorize Commission investigations, and (2) who is empowered to refer, report, or 

otherwise provide information and records regarding enforcement matters to the 

Department of Justice and other law enforcement authorities? 

Fortunately, the Act answers both questions clearly and unequivocally: the 

Presidentially appointed, Senate-confirmed Commissioners must make these decisions. 

The Act imposes this responsibility with good reason- the Commission is an 

independent body specifically created by Congress to interpret and enforce the nation's 

campaign finance laws in a bipartisan manner. To remove from the Commissioners the 

discretion to carry out two of the Commission's most important and most sensitive duties 

would fundamentally alter the system of campaign regulation enacted by Congress nearly 

40 years ago. 

1. The Act Does Not Permit Staff Pre-RTB Investigations 

The first area of disagreement concerns pre-RTB investigative activities by OGC 

in connection with an FEC Matter Under Review (''MUR''). OGC's version of the 

manual permits staff, prior to a Commission finding of RTB, to conduct limitless 

searches of a broad range of materials not included in a complaint or response. 

19 

Unfortunately, and in the face of nearly five years of objections from several 

Commissioners, staff has been conducting such ad hoc pre-RTB investigations, and lately 

their scope has expanded significantly. When asked to justify their authority to conduct 

such pre-RTB investigations, OGC has been unable to point to either a statutory grant of 

power or a Commission vote that gave them the free reign they now claim, and instead 

rely on their own ''organic," ''evolving'' processes. 

18 Open Meeting June 27,2013, Discussion ofthe OGC Enforcement Manual, available at 

http: www.fec.l!OV agenda 2013 agenda20 130627.shtml ("There's a great, great deal of overlap among 

these documents. I think it's fair to say that in the areas of overlap, the public can assume that there"s 

general agreement on the topics that are considered therein."). 

19 Memorandum from Anthony Herman, General Counsel, to The Commission on OGC Enforcement 

Manual ("OGC Proposal") (June 12, 2013), available at http: www.fec.gov agenda2013 mtgdoc 13-

21.pdt; ; see also Memorandum from Anthony Herman, General Counsel, to The Commission Secretary on 

OGC Enforcement Manual ("OGC Proposal II"") (June 26, 2013 ), available at 

http://www.fec.gov/agenda/20 13/mtgdoc_I3-21-b.pdf. 

5 
Nor could OGC point to any authority, since pre-RTB investigations are contrary 

to the Act. The Act is clear that an investigation is to begin only after the Commission 

votes to find reason to believe: 

If the Commission, upon receiving a complaint under paragraph (1) or on 

the basis of information ascertained in the normal course of carrying out 

its supervisory responsibilities, determines, by an affirmative vote of four 

of its members, that it has reason to believe that a person has committed, 

or is about to commit, a violation of this Act ... the Commission shall, 

through its chairman or vice chairman, notify the person of the alleged 

violation. Such notification shall set forth the factual basis for such 

alleged violation. The Commission shall make an investigation of such 

alleged violation, which may include a field investigation or audit, in 

accordance with the provisions of this section. 20 

As recently explained by the Perkins Coie political law group in comments filed with the 

Commission, this is by design: ''Congress wrote FECA to place limits on what the 

Commission may do at the pre-reason to believe, or 'pre-RTB' phase.'' 21 

Indeed, the legislative history of the Act demonstrates that Congress specifically 

decided to have investigations arise out of- and not inform or otherwise provide a basis 

for -a reason to believe finding. Early versions of S. 3065, which President Ford 

ultimately signed into law as the Presidential Election Campaign Act Amendments of 

1976, contained language that expressly allowed pre-RTB investigations. As reported 

initially by the Senate Rules Committee. the bill provided: 

The Commission, upon receiving a complaint under paragraph I. or if it 

has reason to believe that any person has committed a violation of this Act 

or of chapter 95 or 96 of the Internal Revenue Code of 1954, shall notify 

the person involved of such alleged violation and shall make an 

investigation of such alleged violation in accordance with the provision of 

this subsection. 22 

The legislation that Congress eventually passed, however, was significantly different: 

The Commission, upon receiving a complaint under paragraph I. and ifit 

has reason to believe that any person has committed a violation of this 

Act, or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954, 

or. if the Commission. on the basis of information ascertained in the 

:o 2 U.S.C. § 437g(a)(2) (emphasis added). See also II CFR § lll.IO(a). 

:J Comment from Perkins Coie, LLP Political Law Group, on Request for Comment on Enforcement 

Process (April 19, 20 13). available at http: www. fec.gov law policv enforcement 2013 perkinscoie.pdf. 

:: S. 3065, 94'h Cong. § I 08 (1976), available at, Federal Election Commission, Legislative History of the 

Federal Election Campaign Act Amendments of 1976, at 236 ( 1977) (emphasis added). 

6 
normal course of carrying out its supervisory responsibilities, has reason 

to believe that such a violation has occurred, shall notify the person 

involved of such alleged violation and shall make an investigation of such 

alleged violation in accordance with the provisions of this section. 23 

This evolution shows that Congress did not intend for the Commission to conduct 

an investigation before finding RTB. The Senate committee bill would have allowed the 

Commission to ''make an investigation" without such finding, but the final bill required 

the Commission to find RTB before it could do so. This was true whether the RTB 

finding was premised on a complaint or upon information ascertained in the normal 

course of carrying out its supervisory responsibilities. Thus, in either case, a Commission 

finding of RTB became a condition precedent for a Commission investigation. 24 This 

remained true even when Congress amended the provision again in 1979 into its 

substantially current form. 

This is not a new understanding of the limitations imposed by the statute, or even 

one shared only by Democratic lawyers. Jan Baran of Wiley Rein submitted similar 

comments to the Commission in connection with a 2003 hearing on it enforcement 

procedures. 25 Included as part of those comments was a 1982 report and resolution from 

the American Bar Association's Section of Administrative Law regarding the 

Commission's enforcement procedures, which stated in relevant part: ''Under the 

procedures presently in effect, however, the General Counsel is prohibited from 

requesting information from the Respondent prior to a finding of Reason To Believe. The 

Commission has concluded that any such communication with Respondents prior to a 

finding of Reason To Believe is not authorized by the Act.'' 26 

In addition to being contrary to the Act, the pre-R TB investigative activities 

authorized under OGC's proposed manual also pose serious due process concerns. 

Specifically, the OGC manual describes an ad hoc process whereby staff attorneys are 

provided a non-exhaustive list of hearsay materials that ''may'' be consulted (including 

:J Federal Election Campaign Act Amendments of 1976. § I 09, 90 Stat. 475, 483 (1976) (emphasis added) 

(current version at 2 U.S.C. § 437g(a)(2)). 

:

4 See Comment from Perkins Coie, LLP Political Law Group, on Request for Comment on Enforcement 

Process (April 19, 20 13) ("In either case, a Commission reason to believe finding became a condition 

precedent for Commission investigation."). available at 

http: www. fec.gov law'policv enforcement· 2013 perkinscoie.pdf. 

:s Comment from Jan Baran, Wiley Rein & Feilding LLP, on Enforcement Proceedings (May 30, 2003) 

available at http: . www. fec.gov agenda agendas2003 notice2003-09 epdf baranl.pdf. 

:

6 Annual Report of Committees: Report on the Reform of the FEC's Enforcement Procedures, vol. 19 at 

230 (Amer. Bar. Ass'n. Section of Admin. Law 1982). Importantly. the report noted that in some cases a 

respondent's "written submission may raise minor questions which the General Counsel and the 

Commission might wish to pursue prior to dismissing the complaint," but the report recommended only 

that "the Commission [and not the General Counsel] should have the authority to request additional 

information from the respondent." !d. (emphasis added). 

7 
Facebook, Twitter and other social media). Whether staff is to review all, some, or none 

of these materials is seemingly left to the discretion of the staff attorney assigned to the 

matter. 27 It is precisely this sort of standard less sweep that courts have time and time 

again chastised. As Justice O'Connor has explained, the law "must not permit 

policemen, prosecutors, and juries to conduct a standardless sweep ... to pursue their 

personal predilections.''28 

Unfortunately, since OGC has already chosen to go it alone, my criticisms are not 

merely theoretical. I have seen it result in disparate treatment of similarly situated 

respondents. In some matters, no materials are reviewed. In others, materials are 

reviewed and inform OGC's recommendation to the Commission, but they are not 

provided to the respondent for a response. In still others. extensive research is performed 

and provided to the respondent for comment - sometimes without any sort of context and 

other times accompanied by specific questions. In some matters, the materials can total 

in excess of 80 pages, and even include openly-biased blog posts. 29 Staff informs the 

respondent that any response is voluntary, and that no negative inference will be drawnbut in actual fact, if a respondent fails to respond, the articles and other investigative 

materials are deemed true. Rarely, if ever, will OGC seek out or rely on exculpatory 

informative uncovered during their rump investigation. It seems as if OGC only conducts 

a pre-RTB inquiry to confirm their pre-ordained theory of the case. 

Contrary to what some have said and reported, the Republican proposal does not 

in any way preclude OGC from conducting investigations- but a condition predicate to 

any such investigation is a Commission R TB determination. Nor am I turning a blind eye 

to illegal activity reported in the news that cries out for action. On the contrary, the 

Commission has already spoken to the issue in its Directive 6, which expressly instructs 

the staff on what to do with newspaper articles and the like. 30 Under the Directive, the 

staff is to bring such issues to the Commission, who then decide whether OGC ought to 

pursue the matter in a M UR. 31 In fact, in the past, even Commissioners felt bound by the 

mandates of Directive 6, and would formally present troublesome news articles to their 

27 Memorandum from Anthony Herman, General Counsel, to The Commission on OGC Enforcement 

Manual ("OGC Proposal") (June 12, 20 13), available at http: www.fec.gov agenda 2013 mtgdoc 13-

21.pd f. 

28 City of Chicago v . .\1orales 527 U.S. 41, 65 (1999) (internal quotations and citations omitted) (O'Connor, 

J ., concurring). 

29 MUR 6540 (Santorum for President), Statement of Reasons of Vice Chairman Donald F. McGahn and 

Commissioner Caroline C. Hunter (providing fuller explanation of problems with pre-RTB investigations 

in the context of an actual case). 

30 Directive 6 at 4 (available at http: www.fec.gov directives directive 06.pdf). 

31 !d. at 5. If anything, Directive 6 goes beyond the Act in that it declares material obtained via non-routine 

review to somehow be information obtained in the Commission's normal course of carrying out its 

supervisory powers. By definition. "non-routine'' is not "normal." 

8 
colleagues before staff was empowered to act. 32 The proposal is consistent with this 

long-standing process, and allows the staff to bring such material to the Commission, and 

ifthe Commission agrees it is worth pursuing, it will open a separate matter, which can 

subsequently be merged with the complaint-generated case. 

33 

Ultimately, I- along with Perkins, Coie, Wiley Rein and the American Bar 

Association- disagree with the staffs proposal. 

2. The FEC and DOJ 

a. Legal background 

It should come as no surprise that the FEC shares information with DOJ, and that 

the Republican proposal does not alter that. The Act sets forth areas of exclusive and 

overlapping jurisdiction. On the one hand, the FEC administers the Act. says what the 

law is in the first instance, and handles civil enforcement. 34 On the other hand, DOJ 

handles criminal violations; certain knowing and willful violations can be handled by 

either the FEC or DOJ. 35 

The Act explicitly sets forth the procedure for the Commission to report unlawful 

conduct to law enforcement generally, and for referring a matter to DOJ specifically. It 

states that it takes the affirmative votes of at least four Commissioners to make the report 

or referral. Regarding referrals, the Act states in pertinent part: 

If the Commission by an affirmative vote of 4 of its members, determines 

that there is probable cause to believe that a knowing and willful violation 

of this Act which is subject to subsection (d) of this section, or a knowing 

and willful violation of chapter 95 or chapter 96 of title 26, has occurred 

or is about to occur, it may refer such apparent violation to the Attorney 

General of the United States without regard to any limitation set forth in 

paragraph (4)(A). 36 

Regarding reporting wrongdoing, the Act states in pertinent part: 

32 See. e.g., MUR 3540 (Prudential Securities, Inc.) 

33 Memorandum from Vice Chairman Donald F. McGahn, Commissioner Caroline C. Hunter, and 

Commissioner MatthewS. Petersen, on OGC Enforcement Manual ("Republican Proposal'') at 3.4.1.2 

(June 12. 2013 ), available at http: www.fec.gov agenda 2013 mtgdoc 1.3-21-a.pdf 

J-l 2 U.S.C. 437c(b)(l). 

35 Compare 2 U.S.C. 437g(a)(5)(8) with 2 U.S.C. 437g(d). 

36 2 U.S.C. 437g(a)(5)(C). 

9 
The Commission has the power ... to conduct investigations and hearings 

expeditiously, to encourage voluntary compliance, and to report apparent 

violations to the appropriate law enforcement authorities. 37 

The reporting provision is listed as one ofthe Commission's powers that require four 

affirmative votes, and that cannot be delegated: 

All decisions of the Commission with respect to the exercise of its duties 

and powers under the provisions of this Act shall be made by a majority 

vote ofthe members of the Commission. A member ofthe Commission 

may not delegate to any person his or her vote on any decision making 

authority or duty vested in the Commission by the provisions of this Act, 

except that the affirmative vote of 4 members of the Commission shall be 

required in order for the Commission to take any action in accordance 

with paragraph (6), (7), (8), or (9) of section 437d(a) of this title or with 

chapter 95 or chapter 96 of title 26. 38 

In addition to the Act, there has been a publicly available Memorandum of 

Understanding ("MOU") between DOJ and the FEC that was adopted in 1977. This 

MOU makes clear that only the more egregious knowing and willful cases would be sent 

to DOJ. In the MOU, the Commission and DOJ recognize that ''all violations of the 

Federal Election Campaign Act and the antifraud provisions of Chapters 95 and 96 of the 

Internal Revenue Code, even those committed knowingly and willfully, may not be 

proper subjects for prosecution as crimes.'' 39 The two agencies agreed that the 

Commission would refer to DOJ ''those knowing and willful violations which are 

significant and substantial and which may be described as aggravated in the intent in 

which they were committed, or in the monetary amount involved.''40 It lists a number of 

factors that the Commission is to consider in determining whether to send a matter to 

DOJ or not. 41 

b. The problem: Hostility toward the Act 

i. OGC's Secret Policy 

37 2 U.S.C. 437d(a)(9). 

38 2 U.S.C. 437c(c). 

39 Memorandum of Understanding with Department of Justice, 43 Fed. Reg. 5441 (Feb. 8, 1978). 

40 !d. 

41 Such factors include "the repetitive nature of the acts, the existence of a practice or pattern, prior notice, 

and the extent of the conduct in terms of geographic area. persons, and monetary amounts, among many 

other proper considerations." !d. 

10 
Unfortunately, despite the clear language of the Act and MOU, how the FEC has 

internally handled its dealings with DOJ has been far from consistent. FEC staff has 

functioned under what they have themselves called an ''organic'' process (which as a 

practical matter means evolving, ad hoc decision-making), 42 and as OGC recently 

admitted, their practice has ''not been uniform." 43 To avoid such confusion, and so as to 

ensure some much-needed consistency, and after OGC confirmed that there existed no 

written policy, in August of2011 the Commission asked OGC to prepare a draft policy to 

govern such internal workings for Commission consideration. At that time, all 

Commissioners agreed that, at a minimum, OGC was to inform the Commission of 

requests for information from law enforcement and any contemplated OGC response, and 

several Commissioners desired an even more active role. 

Apparently, such a policy was developed soon thereafter by several within OGC, 

but not shared with the Commission until recently. 44 That draft policy, while not perfect, 

would at least have required OGC to inform the Commission of generaL oral requests for 

information from DOJ and, seemingly. would have given the Commission the ability to 

review in advance any disclosure of specific information or records to DOJ. 45 That 

policy was not, however, circulated to the Commissioners for review, comment, or 

ratification. Instead. after some staffturnover, 46 staff jettisoned that draft policy in favor 

of a new policy much different than that requested by the Commission. Under this OGC 

policy, Commissioners were kept in the dark regarding OGCs interactions with DOJ and 

were afforded an opportunity to affirmatively weigh in on such matters only in the rarest 

of circumstances. 4 This secret OGC policy was not circulated to the Commission for 

42 In some past instances, FEC employees were interviewed by the FBI, not as fact witnesses, but as quasilegal experts. Those employees did not alert anyone (not even their supervisors) of their interviews. The 

Commission was unaware, and senior management did not learn of such activity until FEC employee 

names surfaced in FBI reports produced in connection with a criminal trial. 

43 Email from Anthony Herman, General Counsel, to Commissioners on DOJ Requests for DocumentsNotice to Commission (April 15. 2013) available at http: \\Ww.fec.gov agenda 2013 mtgdoc 13-21-e.pdf. 

44 See Memorandum from Kathleen Guith, Acting Associate General Counsel for Enforcement to 

Enforcement Staff Regarding Enforcement Procedure 2011-XX: Requests for Information from the 

Department of Justice and other Criminal Law Enforcement Agencies at 3, available at 

http: www.fec.gov agenda 2013 mtgdoc 13-21-g.pdf (hereinafter "Guith Memo"). We have also learned 

that, despite the memo purporting to come from Ms. Guith. it was a draft prepared by subordinates for her 

review and approval, and was not authored by her. 

45 !d. 

46 A new General Counsel and head of enforcement began after the Commission had tasked OGC with 

drafting a policy for Commission consideration. 

47 See Memorandum from Daniel A. Petalas, Associate General Counsel for Enforcement, to Enforcement 

Staff on Requests for Records of Information from Federal, State, and Local Government Entities (20 12). 

available at http: iwww.fec.gov agenda 2013 mtgdoc 13-21-f.pdf. This secret policy, on its face, 

instructed staff to act in a manner contrary to the Act. since it empowered the staff to report matters to law 

enforcement. a non-delegable power specifically entrusted to the Commissioners. On its face, this policy 

requires staff attorneys to notify Commissioners of communications with DOJ after the fact by placing a 

11 
review, comment, or ratification; however, email records indicate that it was circulated to 

OGC enforcement staff(and, presumably, went into effect) on June 14,2012. 

Keeping the secret OGC policy from the Commission does not appear to have 

been an accident. For example, the General Counsel made no mention of this secret 

policy in his April 15, 2013 email to the Commission announcing ''a uniform policy" 

regarding OGC s efforts to inform the Commission of requests from DOJ for documents 

-an email which, it seems, effectively amended but did not acknowledge the secret OGC 

policy. 48 Even more remarkable, despite spending over a year drafting what was 

supposed to be a comprehensive manual that would govern OGC's enforcement activity, 

staffs draft manual did not originally include their own secret OGC policy. 49 And it was 

not as if dealing with law enforcement was beyond the scope of the manuaL as the initial 

drafts reference dealing with DOJ generally. 50 But the details of how that was to be 

carried out were nowhere to be found. In other words, although House Administration 

insisted and the Commissioners had agreed to cease and desist from maintaining secret 

policies. OGC had a secret policy that was not included in what was supposed to be a 

comprehensive public manual. 

The Commission eventually learned the contents of this secret policy through a 

chain of events. A few weeks after OGC's April 15,2013 email announcing a ''uniform'' 

policy to correct OGC's failure to keep the Commission informed, OGC informed the 

Commission that it would be producing documents to DOJ. Several Commissioners 

questioned this, particularly regarding from where OGC derived its authority to 

unilaterally make such a decision, and whether the Commissioners had any say in such a 

decision. When asked for additional information regarding OGC's dealings with DOJ, 

OGC was, to put it kindly, not a paradigm of cooperation. After some stonewalling by 

OGC, the Commission eventually received from OGC on May 22, 2013 over 25,000 

pages of emails between OGC and DOJ from just 2013 alone, oddly called a ''document 

production,'' complete with OGC bates labels. For reasons that still remain unclear, OGC 

did not include its secret policy in this litigation-style document dump. Indeed, 

Commissioners were not shown this policy until June 4, 2013. 

memorandum in an electronic case file (Voting Ballot Matters). This practice is followed sporadically. at 

best. Infra at 14. 

48 Email from Anthony Herman, General Counsel, to Commissioners on DOJ Requests for DocumentsNotice to Commission (April 15. 20 13) available at http: www.fec.gov agenda 20 l3,mtgdoc 13-21-e.pdf. 

49 See After the truly comprehensive Republican proposal was released for public review, see Republican 

Proposal at 2.11, OGC amended their proposed manual to cross reference the secret OGC policy on sharing 

information and other documents with law enforcement agencies. Compare OGC Proposal with OGC 

Proposal II at~ 3 .4.1.4. 

50 Memorandum from Anthony Herman, General Counsel, to The Commission on OGC Enforcement 

Manual ("OGC Proposal") (June 12, 20 13), available at http: www.fec.gov agenda. 2013 mtgdoc 13-

21.pdf. [1.2.5; 4.4.14; 7.6.3.4; 7.6.3.5] 

12 
Fortunately, many ofthe documents constituted the sort of information sharing 

that all would consider appropriate. However, some gave me pause, as there were several 

examples that were out of the norm: 

• In one now-closed matter, prior to the file becoming public. OGC referred a 

matter to DOJ. OGC did not recommend that the Commission refer the matter 

(which under the Act required a vote), but apparently chose to do so on its own. A 

Commission Directive precludes staff from sharin~ a matter outside the confines 

of the agency until after the matter is made public 1 - here, OGCs report came 

prior to that time. Most frustrating about this matter is that, at least according to 

the respondent, OGC agreed as part of settling the matter that it would not be 

referred to DOJ. Shockingly, when asked, OGC denied that they communicated 

with DOJ during the ''pendency'' of the matter, even though they did so prior to 

the matter becoming public. To justify their antics, OGC claimed: (1) that the 

Commission did not refer the matter, since they never voted to do so (which is 

circular, and does not answer the question as to whether OGC referred the matter 

on its own). (2) that nothing in the Act precludes OGC from sharing information 

with DOJ (and that supposed lack of prohibition confers that power on OGC), and 

(3) that although OGC may have represented that the matter would not be 

referred to DOJ, OGC never said they were not going to confer with DOJ. Such 

semantics are wholly. Ultimately, this case is precisely the sort of matter that the 

Commission might have referred in lieu of pursuing it through civil enforcement, 

had OGC made such a recommendation. Instead, OGC took matters into their 

own hands, in contravention ofthe statute and apparently in contravention ofthe 

settlement agreement. 52 

• In another matter, 53 OGC shared with DOJ its First General Counsel report, 

regarding whether or not OGC recommended that the Commission find reason to 

believe in a matter, prior to the Commission considering the merits. This does not 

seem to have happened before, and OGC has not been able to point to another 

similar example where it shared this sort of confidential, attorney-client document 

51 Directive 31 at I ("The Federal Election Campaign Act specifically prohibits all employees from making 

public information concerning any compliance action pending before the Commission .... Staff members 

must be particularly careful not to communicate with any person outside the agency concerning compliance 

matters during both working and non-working hours." (emphasis added)). 

52 OGC cannot point to a previous example of a matter that was either reported or referred without a 

Commission vote, and since September of 20 II. has made no such recommendations. 

53 Because the matter is still pending, the Act's confidentiality protection prevents me from identifying the 

MUR with specificity. However, the confidentiality protection does not preclude discussing matters in 

more general terms, as long as the respondent cannot be identified. See MUR 298 (In Re Unknown 

Respondents), Letter from Benjamin R. Civiletti, Assistant Attorney General, Criminal Division to Vice 

Chairman Thomas E. Harris, Federal Election Commission (May 20, 1977) (a violation of the 

confidentiality provision requires "at the very least, that the disclosure in question be such that the identity 

ofthe subject of a compliance action undertaken by the Commission and the nature ofthe charges being 

investigated by the Commission are apparent from the words spoken."). 

13 
at such an early stage of a proceeding. 54 One obvious concern is that it could 

create the appearance that DOJ is influencing what should otherwise be the 

independent administration of the Act by the FEC. More troubling is that it 

concerns a novel legal issue in a high-profile, politically-charged case, and despite 

the Chair's prior urgency to resolve the matter, it had disappeared from the 

Commission's agenda. Despite numerous requests by us to place it back on the 

Commission agenda, the Chair has refused, and the matter remains pending. 

We have also learned that staff has not complied with their own secret policy, 

particularly with respect to, as one set of comments described it, ·'tracking, 

memorializing, and approving DOJ requests, protecting the confidentiality of shared 

enforcement records, and informing the Commission of certain types ofrequests.'' 55 For 

example, per the secret OGC policy, one would assume that there would be some sort of 

log that would track any requests from and responses to DOJ. Not so- in fact, contrary 

to its own secret policy, OGC had in several instances failed to include materials in what 

is called Voting Ballot Matters, which is the computer system that gives Commissioners 

partial access to OGC files. 

ii. Proposed MOU 

OGC's secret policy was not the only instance of them inappropriately hiding the 

ball. When the General Counsel undertook negotiations with DOJ in an effort to 

modernize the MOU, he did not provide the draft MOU to the Commissioners until after 

DOJ had approved it, despite requests from a number of Commissioners across the 

political spectrum to see the document. 56 How it was handled differed radically from 

past efforts, where a past General Counsel kept the Commission fully informed and 

sought significant input into MOU negotiations. 57 And when the Commission was 

finally provided a copy of the proposed MOU, it was unacceptable to most 

Commissioners. 

Taking issue with draft MOUs is nothing new, and OGC ought not have been 

surprised that Commissioners would have wanted to be involved in MOU negotiations. 

After all, over the years, because both DOJ and a number of Commissioners have not 

54 Under OGC's secret policy at III.B, the handing over of FGCRs should have triggered an informational 

memo to the Commission. It did not. 

55 Letter from Sheldon Whitehouse, Jeanne Shaheen, AI Franken, Charles Schumer, Jeff Merkley, and 

Tom Udall to The Honorable Ellen Weintraub. Chair. and The Honorable Donald F. McGahn II, Vice 

Chairman, Federal Election Commission at 2 (July 15, 2013). 

56 See Draft Memorandum of Understanding Between the Federal Election Commission and the United 

States Department of Justice Regarding Enforcement of the Federal Campaign Finance Laws. 

57 See, e.g., See Memorandum from Lawrence H. Norton. General CounseL James A. Kahl, Deputy General 

Counsel, and Rhonda J. Vosdingh, Associate General Counsel for Enforcement, on the Proposed MOU 

Between the Commission and DOJ ("Norton Memo") (March 3, 2006) available at 

http: W\\w.fec.gov:agenda;2013 mtgdoc 13-21-j.pdf. 

14 
been entirely pleased with dealings between the FEC and DOJ, the FEC and DOJ have 

periodically attempted to update and revisit the current MOU. Often times, in particular 

enforcement matters, DOJ would not involve the Commission until either shortly before a 

plea agreement, or in the event they chose not to prosecute, refer the matter on the eve of 

the running of the statute of limitations. Moreover, in those past MOU negotiations, DOJ 

had consistently sought to diminish the role the Commissioners have in the decisionmaking process. 

58 Both the Commissioners and prior General Counsels had consistently 

rebuffed such efforts. The more recent proposed MOU took the opposite approach, and 

made the staffthe prime decision-maker. 

There are other problems with the OGC MOU. For example, it requires OGC to 

report all matters that concern potential knowing and willful conduct, at any stage of the 

proceeding. 59 This has the potential to escalate the trivial to the criminal. Everyone 

knows that some complaints are written to garnish politically charged headlines on the 

eve of an election, and brandish about knowing and willful accusations without much in 

the way of substantive support. But under OGC's approach, all one needs to do is simply 

allege knowing and willful conduct to ensure that OGC reports the matter the DOJ. 

Under such an approach, the Commission would be removed from the process, and cede 

much of its enforcement responsibility to DOJ. Under such circumstances, why would 

anyone deal with the FEC on a matter that could possibly include a knowing and willful 

violation? 

This is the opposite of the system created by Congress. As Congressman Frenzel 

artfully noted during Congress's deliberation over the 1974 Amendments to the Act: 

If [the Department of] Justice wanted to, it could prosecute most of the 

candidates (including most of the incumbents) than ran in the 1972 

election. In the aftermath of Watergate, the Justice Department could 

seriously embarrass and end the political careers of many candidates and 

incumbents by simply prosecuting them for minor violations. The 

Commission would have the power and authority to prevent such unfair . 60 prosecutzons. 

58 Compare id Attachment C (Proposed MOU from Noel L. Hillman, Public Integrity Section to Larry 

Norton, General Counsel (May 19, 2004)) at~ 7( a) -(b) ("' f the Commission or its staff develops or 

receives evidence that a knowing and willful violation of the federal campaign financing laws above the 

criminal jurisdiction amount may have occurred, or that a related offense may have occurred, the 

Commission's Office of the General Counsel shall refer the matter to the attention of the Public Integrity 

Section ... "and "[i]f, during a review of a violation of the federal campaign financing laws, the 

Commission or its staff is uncertain whether sufficient evidence suggesting a knowing and willful violation 

of these laws has been developed or received, the Commission's Office of the General Counsel shall consult 

informally with the Department's Public Integrity Section on this issue." (emphasis added)) with id. at 

Attachment B (Proposed MOU from Lawrence H. Norton, General Counsel to Christopher Wray, Assistant 

Attorney General) at~ 15("The Commission may refer apparent knowing and willful violations of the 

FECA to the Department ... "(emphasis added)). 

59 See id. 

60 H.R. Rep. No. 93-1239, Supplemental Views ofRep. Bill Frenzel. at 139. (pg 773 of'74 Green Book). 

15 
Consistent with this intent, the Act provides for a referral occurring only at the end of the 

Commission's investigation and after it votes probable cause. In the past, the 

Commission had sought to change this, but to no avail. For example, in its Annual 

Report from 1996, the Commission recommended that the Act be changed to grant the 

Commission ''the ability to refer appropriate matters to the Justice Department for 

criminal prosecution at any stage of a Commission proceeding.'' 61 In support, the 

Commission noted: 

• The Act provides for ''referral only after the Commission has found probable 

cause to believe that a criminal violation of the Act has taken place.'' 62 

• ''[E]ven if it is apparent at an early stage that a case merits criminal referral. the 

Commission must pursue the matter to the probable cause stage before referring it 

to the Department [of Justice] for criminal prosecution.'' 63 

• 'The Commission has the general authority to report apparent violations to the 

appropriate law enforcement authority (see 2 U.S.C. § 437d(a)(9)), but read 

together with § 437g, § 437d(a)(9) has been interpreted by the Commission to 

refer to violations of law unrelated to the Commission's FECA jurisdiction.''64 

Perhaps if OGC would have sought input from its client, the Commissioners could have 

shared with them this history that makes clear that staff cannot refer matters whenever 

they want. Unfortunately, they did not, and by choosing to go it alone, have acted 

contrary to the Act. 

c. The solution: Follow the statute 

For most of the FECs history, and despite OGCs recent efforts to justify their 

rogue activities by claiming twenty years of consistent staff-driven practice, the 

Commission took the Act seriously. It made formal referrals, only after it had found 

probable cause. Staff did not take matters into their own hands and deal with DOJ on 

their own. OGCs attempt to recast this history is unavailing, and is contradicted by both 

prior OGC and DOJ writings: 

• Much to the consternation of DOJ, the FEC viewed the confidentiality 

protections ofthe statute as precluding it from sharing information with 

DOJ absent a Commission vote. In other words, the referral provision was 

61 Federal Election Commission Annual Report ( 1996) at 44, available at http: www.fec.gov pdfar96.pdf. 

62 !d. at 45. 

63 !d. 

64 !d. at 45. n.2. 

16 
an exception to the confidentiality protection. DOJ confirmed this in its 

2006 legislative recommendations to Congress. 65 OGC now claims that 

the Commission abandoned this broad reading of the confidentiality 

provision long, long ago; as recently as 2006 however, DOJ claimed it 

remained the view of the Commission. 66 

• Similarly, as recently as 2006, DOJ told Congress that the FEC would not 

provide information to DOJ absent a grand jury subpoena. 67 This stands 

in stark contrast with OGC's current claim that the FEC abandoned this 

position long before that time. 68 Relatedly, a 1993 policy document from 

OGC states that four Commissioners must approve any response to a 

Grand Jury subpoena. 69 

• Contrary to OGC's claim that FEC staff has been sending material to DOJ 

without a Commission vote for some time, a previous General Counsel 

informed the Commission in writing in 2006 that he might recommend 

changing the Commission's ''longstanding interpretation that Section 43 7 g 

and 43 7d(a)(9) do not allow referral of FECA violations prior to a finding 

of reason to believe.'' 70 In other words, at least as recently as 2006. staff 

did not think they were empowered to refer matters on their own. 

In addition to the historical record, we know from our own first-hand experience 

that much of what OGC now says is either incomplete or wrong. A former 

Commissioner has already said as much, stating OGC's memo is ''wrong on the law'' and 

65 Letter from William E. Moschella, Assistant Attorney General, DOJ Office of Legislative Affairs, to The 

Honorable Dennis J. Hastert, Speaker, U.S. House of Representatives at 2 (Jun. 23, 2006) available at 

http:·. www.fec.gov·agenda; 2013 mtgdoc 13-21-i.pdf. 

66 !d. 

67 Letter from William E. Moschella, Assistant Attorney General, DOJ Office of Legislative Affairs, to The 

Honorable Dennis J. Hastert, Speaker, U.S. House of Representatives at 2 (Jun. 23, 2006) available at 

http: www.fec.gov agenda2013.mtgdoc 13-21-i.pdf. 

68 Memorandum from Anthony Herman, General Counsel, and Daniel A. Petalas, Associate General 

Counsel for Enforcement to The Commission. on Information Sharing with the Department of Justice at 2 

(June 17, 2013), available at http: www.fec.gm agenda2013 mtgdoc 13-21-d.pdf. 

69 Memorandum from Lois G. Lerner, Associate General Counsel, to Enforcement Staff on Supplying 

Commission Documents to a Grand Jury (1993 ), available at 

http: www.fec.gov,pdfAdditional Enforcement \ilaterials.pdf. 

70 See. e.g, See Memorandum from Lawrence H. Norton. General Counsel, James A. Kahl, Deputy General 

Counsel, and Rhonda J. Vosdingh, Associate General Counsel for Enforcement, on the Proposed MOU 

Between the Commission and DOJ ("Norton Memo") at 2 (March 3. 2006) available at 

http: www. fec.gov agenda;20 13. mtgdoc 1.3-21-j.pdf. 

17 
is ''flat wrong.'' 71 He also said that during his tenure (2006-2007), the Commissioners 

made the decisions. 72 Similarly, the idea the no Commissioner had ever questioned staff 

practice previously is incorrect -- why then would a number of past Commissioners 

attempt to negotiate a new MOU? Why would OGC's enforcement head send an email 

to Commissioners responding to their questions, if they had not asked questions in the 

first instance? 73 Why would the Commission - all the Commission - instruct OGC to 

draft a policy for consideration on this very topic? And why did OGC hide their own 

policy, and not include it in their draft enforcement manual? OGC's reliance on 

anecdotal folklore does not answer these questions. 74 

By contrast, our current proposal is based upon the FEC's written history, and not 

anecdotal folklore. Our proposal is based upon what had been longstanding FEC 

practice, which apparently worked quite well and without the parade of horribles now 

imagined by OGC. It is not formalistic, and does not require a subpoena (OGC has 

spilled much ink attacking the idea of mandating a subpoena, which no one has 

proposed). 75 But where it does differ from the staffs preference is that it includes the 

Commissioners in the decision-making process. Since I find it hard to imagine a 

situation where the Commission would not provide information to DOJ in response to a 

legitimate request (the one exception is perhaps when a special counsel is appointed), 76 

our proposal is not intended to slow down ongoing criminal probes. 77 Instead, its 

purpose is twofold: (I) provide the public with assurances that staff operate pursuant to 

Commission policies and oversight, and not their own whim, and (2) ensure that those 

tasked with the running the agency- the Commissioners themselves- are responsible 

and accountable for activity at the agency. As recent IRS issues demonstrate, it is not an 

71 Voice of America, Interview of Hans von Spakovsky, available at 

http://voicerussia.com/radio _ broadcast/70924886/1 18023 791.html. 

72 !d. 

73 See Email from Ann Marie Terzaken to the Commissioner's Offices (Aug. 7, 2008), available at 

http://www.fec.gov/agenda/20 13/mtgdoc_13-21-h.pdf. 

74 OGC only relies on anecdotal folklore from a few select former General Counsels (some of which is 

contradicted by contemporaneous written memos from the General Counsel). Curiously, OGC did not 

choose to include any history as told by past Commissioners. Tellingly. not a single past Commissioner 

has publicly stated that OGC's recounting of FEC history is accurate and complete. 

75 Memorandum from Vice Chairman Donald F. McGahn, Commissioner Caroline C. Hunter, and 

Commissioner MatthewS. Petersen, on OGC Enforcement Manual ("Republican Proposal") at § 2.11 

(June 12, 2013 ), available at http:·. www.fec.gov agenda 2013 mtgdoc 13-21-a.pdf (For example, § 

2.11.2.1 provides "[r]equests by law enforcement agencies for non-public information and records relating 

to Commission enforcement matters must be made in writing (though not necessarily by subpoena)." 

(emphasis added)). 

76 The Commission has declined to provide information to state and local law enforcement in the past. 

77 Most Commission votes are taken by ballot, not in a formal meeting, with tight due dates. See generally 

Directive 52 (Circulation Vote Procedure), available at http://www.fec.gov/directives/directive_52.pdf. 

18 
acceptable answer for an agency head to say ''I didn't know'' when something goes 

78 

wrong. 

And what could go wrong? Plenty. For example, prosecutors are held to much 

higher standards than the FEC when it comes to maintaining evidence, and are obligated 

to disclose exculpatory information. FEC staff, when left to their own devices, has not 

risen to that challenge. In one matter (from which I was recused). OGC conducted a farreaching investigation, apparently years after it had received exculpatory information that 

the target of the investigation was not responsible for the underlying criminal scheme. 

Only at the ~robable cause stage of the proceeding did the Commission learn this and put 

an end to it. 9 Imagine a situation where OGC provided some information to DOJ, but it 

did not provide exculpatory information to DOJ. This is not far fetched, given that (I) 

the staff has already been caught not providing exculpatory information to both a 

respondent and the Commission, in contravention of OGC own internal policy, 80 and (2) 

until recently, OGC lacked a consistent filing system, and instead, each enforcement team 

kept their own hodge-podge files (and even now OGC still appears unable to follow even 

their own secret policy with respect to keeping records). IfDOJ then brought a criminal 

case, there would have been exculpatory information in the possession ofthe government 

that would not have been disclosed, placing DOJ in a precarious position. Given the 

tragedy of the Ted Stevens trial, and DOJ's failure to produce such information in that 

case, it is not unreasonable to say that such sensitive issues need some oversight. At the 

FEC, the statute vests that oversight obligation with the Commissioners. 

A second problem with OGC's proposal is it would cause the Commission to 

stand idly by even if DOJ pursued novel questions of law prior to the FEC resolving the 

underlying legal issue. I am not referring simply to the misguided prosecution of John 

Edwards on a dubious legal theory. 81 Although ancient history to some, it was not all 

that long ago that DOJ launched a probe after the 1996 presidential election regarding 

supposed coordination of issue ads. 82 In fact, the probe began after DOJ subpoenaed a 

preliminary audit report of FEC staff that had not yet been considered by the 

Commission. Today, in light of subsequent FEC action and judicial decisions such as 

78 I have been assured by senior OGC staff that OGC does not communicate with the IRS regarding 

pending enforcement matters. 

79 MUR (6054) (Vern Buchanan for Congress), Probable Cause Hearing Transcript at 40-41 (one 

Commissioner apologizing for exculpatory information being provided to respondents "at the last 

minute."). 

80 Enforcement Procedure 2007-4: Exculpatory Evidence (Jan. 9, 2007), available at 

http:· www. fec.gov;pdf Additional Enforcement \1aterials.pdf 

81 See Open Meeting July 2 L 20 II, Discussion of Audit Division Recommendation Memorandum on John 

Edwards for President. 

s:> FEC Audit Led to New Clinton Probe, Sept. 4, 1998 p. AO I, Washington Post 

http: www. washingtonpost.com wp-srv~politics special campfin storiesTeno090498.htm 

19 
FEC v. Christian Coalition, 83 

we know that there was nothing illegal about the 1996 

advertisements in question. The post-1996 investigations serve as a reminder as to why 

the Commission must not shirk its duties and responsibilities under the Act. 

B. Future Votes, Commission Process and the 3-2 Split 

Clearly, the Republican proposal is a reaction to staff not keeping the 

Commission informed and not honoring the Act. Certainly, the Republican proposal of 

requiring a formal Commission vote in each instance is probably not the only way to 

achieve the goal of ensuring Commission accountability. I note the proposal is just that: 

a proposal, and I hope other Commissioners will put forth alternatives so that any other 

options are considered. Perhaps a formal vote is not required to provide information in 

response to a request by DOJ; perhaps OGC can live by a formal policy that keeps the 

Commission informed, and provides the Commissioners an opportunity to weigh in when 

appropriate. Thus far, however, the staff has been unable to police themselves, and 

therefore leaving them to their own devices is not a viable option. Certainly. the statute 

cannot be ignored. 

As for how the Commission is to go about adopting an enforcement manual and 

resolving these issues, it is a process that has been ongoing for some time, and contrary to 

hyperbolic headlines, it is not some 11th hour partisan power grab. Quite the contrarymuch of our proposal almost mirrors the comments filed by Democratic powerhouse 

Perkins Coie. And there is nothing last minute about this- House Administration had its 

hearing in November of2011, and OGC submitted a draft manual to the Commission in 

January of 2013. Unfortunately, three open meetings have come and gone since the 

various proposals were first publicized. Apparently, the Chair has already decided to 

hold over the matter yet again- after initially attempting to not even include it on the 

agenda. That the Republican Commissioners are now being denied the opportunity to 

deliberate the various proposals in public is bad enough. That the delay has continued to 

allow the staff to run wild, reverse-engineer pre-determined conclusions. and conduct 

pre-RTB investigations unchecked by the Commission, is unforgiveable. By causing this 

delay, the staff gets what they want, and Commissioners who dare question it have been 

silenced. 

Yet the reform lobbyists and media sympathizers cry foul that there is a vacant 

seat at the FEC, and the Republicans enjoy a 3-2 majority (incidentally, OGC has 

previously opined that a number a things, including hiring a General Counsel, can be 

decided by a simple majority). Tellingly, the reformers and media sympathizers did not 

cry foul when the shoe was on the other foot, and Democrats enjoyed the majority. 84 Nor 

83 52 F. Supp.2d 45 (D.D.C. 1999). 

84 There have been a number of times when the Commission had less than six members, and in those 

instances, no one claimed that the Commission ought not act. At least in the modem history of the 

Commission, it has occurred three times: ( l) between 1995 and 1998, after Commissioner Potter resigned; 

in 2002 for about 5 months, after Commissioner Smith resigned; and (3) in 2007 and 2008, for almost two 

years, after Commissioner Toner resigned. The only difference between these situations and now is that 

this is the first time that the Republicans hold a majority. 

20 
did they cry foul with respect to any other Commission business. Republicans have had 

this temporary majority for over six months, without incident. If we were committed to 

some sort of partisan power grab, we would have done so long ago. 

The reformers and their media enablers claim that the enforcement manual can be 

approved by a simple majority vote. Regardless of whether such a vote could approve 

the manual, what is certainly true is that the staff proposal has always lacked majority 

support, regardless of how one defines a majority. Thus, whether or not our proposal 

could pass on a 3-2 vote inverts the real problem: the staff proposal will not pass, and 

despite that, they may still wish to go it alone in spite of the views of a majority of the 

Commission. Certainly, one or two Commissioners cannot unilaterally empower the staff 

to go it alone and operate beyond the Commission and ultra vires of the statutealthough given the delay in considering the manual, this is precisely what has already 

happened. This is particularly offensive when a majority of the Commission disagrees, 

and when there was never a bi-partisan. four Commissioner vote to empower OGC in the 

first instance. 

Much to the dismay of reform industry lobbyists, the Commissioners are not 

simply a veto on the staff. and to assume otherwise inverts the grand compromise of the 

statute, which vests decision-making power with the Commissioners. Hopefully, other 

Commissioners will rise to the occasion and put forth credible proposals of their own that 

could foster compromise, and thus avoid the 3-2 procedural issue all together. 

Ultimately, it is up to them. 

21