July 12, 2013

By Email

Commissioner Ellen L. Weintraub, Chair

Commissioner Donald F. McGahn, Vice Chair

Commissioner Caroline C. Hunter

Commissioner Matthew S. Petersen

Commissioner Steven T. Walther

Federal Election Commission

999 E Street NW

Washington, DC 20463

Re: Comments on Agenda Document No. 13-21: Proposed 

Amendments to the OGC Enforcement Manual

Dear Commissioners:

We are writing to inform you of our strong objections to the changes to the agency’s 

Enforcement Manual that have been proposed by Commissioners McGahn, Hunter and Petersen. 

These proposed changes must be rejected by the Commission because they will prevent 

the free exchange of information between the professional staff of the agency and the Justice 

Department, United States Attorneys and other agencies, at the expense of enforcing the nation’s 

campaign finance laws. 

These changes will also prevent the Commission’s professional staff from considering 

information that is already public information without the voting approval of four 

Commissioners, thereby forcing the professional staff to act as if they are blind to information 

that is on the public record and that is available to everyone outside the agency.

The proposed changes are nothing less than a gag rule for the professional staff of the 

agency. They would have the predictable effect of seriously undercutting not just the 

FEC’s ability to effectively enforce the campaign finance laws, but the ability of the rest of the 

federal government to do so as well.

Any Commissioner who votes for these proposed changes is voting to sabotage the 

enforcement of the nation’s campaign finance laws by the FEC, the Justice Department and 
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United States Attorneys. Any Commissioner who votes for these changes will be doing a great 

disservice to the American people.

For an agency that is riven by ideological and partisan dysfunctionality, and that has 

already lost public credibility as competent to administer and enforce the campaign finance laws, 

the FEC should not further damage itself by imposing artificial and indefensible constraints on 

its staff’s ability to investigate potential violations of the law. Such constraints have not been 

viewed as necessary or appropriate since the agency’s creation in 1974. They are neither 

necessary nor appropriate today.

We also want to express our strong objection to the consideration of these major changes

to the agency’s Enforcement Manual at a time when there is less than a full complement of six 

Commissioners on the agency. Although it is not entirely clear what procedures the Commission 

may attempt to use to vote on the changes proposed by the Republican Commissioners, it would 

be highly inappropriate, and potentially contrary to law, for the three Republican Commissioners 

to purport to adopt such changes without a fourth vote, i.e., without the vote of at least one 

Democratic Commissioner.1

 

To the extent there is an effort to decide this matter now it would be simply illegitimate

for the three Republican Commissioners to take advantage of a temporary vacancy in a 

Democratic seat to adopt, by themselves, major changes to agency policy and practice. Indeed, 

once adopted by three Republican votes, these changes to the Enforcement Manual then could 

not be reversed by fewer than four votes after the agency again has its full complement of six 

members. In other words, the Republican Commissioners by acting now and acting alone can, as 

a practical matter, ensure these changes are indefinitely locked in. 

The central purpose of the structure of the FEC is that significant decisions by the agency 

must be made on a bipartisan basis, i.e., with the vote of at least one member of each party. 

Adopting major changes to the agency’s Enforcement Manual now, acting solely on the basis of 

three Republican votes, is contrary both to the underlying purpose of the Commission’s structure 

and to the agency’s traditions. 

This situation is all the more egregious given that nominees for the vacant Democratic 

seat and for Commissioner McGahn’s holdover seat have been named by President Obama. 

 1 The statute expressly requires “the affirmative vote of 4 members of the Commission” to adopt 

“any action in accordance with,” inter alia, the Commission’s authority “to conduct investigations” set 

out in § 437(d)(a)(9). See 2 U.S.C. § 434c(c). Voting on significant changes to the Manual setting forth 

the Commission’s enforcement procedures certainly can be viewed as an action “in accordance with” the 

“Commission’s power . . . to conduct investigations.” Further, the proposed changes to the Manual 

appear to be so extensive as to have the effect of countermanding Commission regulations, e.g., 11 C.F.R. 

§ 111.8—an action that cannot be done without the vote of four Commissioners after notice-and-comment 

rulemaking.
3

According to published reports, the Senate Rules and Administration Committee will conduct a 

confirmation hearing on the two pending nominees on July 24 and the nominees could move to 

the full Senate for confirmation before the August recess.

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There is no reason to believe the Commission will not be at full strength in the near 

future, and no action should be taken by the FEC on this matter until then. 

While Commissioner McGahn has a right to vote on normal Commission business until 

his successor takes office, his effort to force through major changes to the Enforcement Manual 

is not normal agency business, but rather a lame duck power play designed to exploit a 

temporary vacancy in a Democratic seat before this window of partisan advantage closes. 

There is certainly no exigency that requires the Commission to act now on the 

Enforcement Manual. That alone makes the rush to amend the Manual appear as little more than 

an opportunistic partisan exercise by the Republican Commissioners to further undermine the 

agency’s enforcement procedures. Any such effort is tainted at the core. 

We strongly urge that the Commission not consider the Enforcement Manual until the 

two new nominees to the Commission are seated, which should happen in the near future.

While many of the policy changes proposed by the Republican Commissioners will 

unreasonably limit the investigative authority of OGC, two of the proposed new constraints are 

particularly unwarranted—and appear unprecedented—for an enforcement agency that is serious 

about its task. These changes, which we discuss below, seem intended only to serve the interests 

of the regulated community and the defense bar, not the American people, by requiring OGC to 

willfully blind itself to readily available information, both from public sources and from sister 

enforcement agencies, that may be highly germane to developing enforcement cases. 

First, the Republican Commissioners propose to strip OGC of the ability to accept 

information from, or give information to, any local, state or federal law enforcement agency, 

including the Department of Justice, without the vote of four Commissioners. Thus, the 

Republican Commissioners propose to add to the Enforcement Manual a new provision that 

states:

[I]t is the Commission’s policy that non-public information or records may only 

be provided to law enforcement agencies or other government entities pursuant to 

a written request and upon the affirmative vote of at least four members of the 

Commission. . . .

Such non-public information and records subject to this requirement include: 

inquiries regarding the existence of a complaint . . . ; information on the status of 

a complaint or matter, including the nature of allegations included in a complaint, 

the stage of proceeding, and the anticipated timeline for any remaining steps in 

the matter; any document related to an open or pending matter, including 

 2

 See Dave Levinthal, FEC Nominations Moving Forward, Center for Public Integrity (July 11, 2013), at

http://www.publicintegrity.org/2013/07/11/12948/fec-nominations-moving-forward.
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complaints, responses, sua sponte submissions, and counsel reports; and any nonpublic document related to a closed matter, including investigative materials and 

deposition transcripts.

Enforcement Manual (Republican Commissioners’ Draft) (“Rep. Enf. Man.”) (June 12, 2013),

sec. 2.11.2.3

Conversely, the Republican Commissioners propose to delete a section of the current 

Enforcement Manual that authorizes OGC to seek information from other law enforcement 

agencies as part of the fact development in an enforcement matter. The section proposed to be 

deleted from the list of sources that should be used for “fact development” in enforcement 

matters, states:

At times, another agency may have a pending or closed matter involving the same 

respondent as in a pending Commission matter. For example, DOJ or the Office 

of Congressional Ethics (“OCE”) may be investigating an entity or individual that 

is also a respondent in an FEC matter. . . . Similarly, state or local entities may be 

prosecuting a respondent who is also the subject of an FEC matter and may have 

relevant information or documents, such as news about an impending plea 

agreement or the plea agreement itself. 

Rep. Enf. Man., sec. 3.4.1.4 (proposed deletion). By the proposed deletion, it is plain that the 

intent of the Republicans Commissioners is to prohibit OGC, without a majority vote of the 

 3 Sec. 2.11.1.1 provides an exception to this rule so that, “in response to an inquiry from a law 

enforcement agency about a specific person or entity,” an OGC attorney may, without prior Commission 

approval, “confirm that the Commission is in receipt of a complaint or has pending before it a matter 

involving that person or entity,” but may not “provide to a law enforcement agency any other non-public 

information or records about a Commission enforcement action, whether open or closed.” 

The proposed change appears to rest on an interpretation of a statutory provision stating that “the 

affirmative vote of 4 members of the Commission” is required “to report apparent violations to the 

appropriate law enforcement authorities.” 2 U.S.C.§§ 437c(c); 437d(a)(9); Rep. Enf. Man. at Sec. 2.10 

(“Providing information or records to another law enforcement agency, even in response to a request, is a 

report under the Act and must be authorized by the Commission.”). This reasoning is plainly wrong. The 

Commission can respond to requests for information from another law enforcement agency without 

taking the position that there is, or is not, an “apparent violation” of the Act to report. That is an entirely 

separate determination that is not necessary to reach in sharing investigative information with another 

agency. 

Nor does the confidentiality provision of FECA, 2 U.S.C. § 437g(a)(12)(A), provide a basis for 

the proposed change, since that provision mandates only that an investigation “shall not be made public 

by the Commission.” The existing Enforcement Manual correctly states, “The confidentiality provisions 

of the Act do not preclude providing information or records relating to the enforcement or conciliation 

process to federal law enforcement agencies such as the DOJ,” a statement the Republican 

Commissioners propose to delete. Rep. Enf. Man. sec. 2.8.2.3 (proposed deletion). It would be a strange

interpretation of the statutory language to assume that providing confidential information to the 

Department of Justice is equivalent to making information “public.”
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Commission, from seeking information from other law enforcement sources where such 

information may be useful in developing the facts about a matter under investigation by OGC.

Overall, the effect of these changes is to require OGC, absent specific prior approval by 

the vote of four Commissioners, to isolate itself from other law enforcement agencies and to 

disdain any coordination or cooperation with other agencies—including the Department of 

Justice—that may assist the Commission or other law enforcement authorities with the 

enforcement of the campaign finance laws. 

As a matter of first principles, one would assume that coordination with other agencies 

would be an effective and efficient way for the Commission to discharge its duty to enforce the 

law. Such coordination could be useful in avoiding duplication among agencies in investigative 

efforts and in expediting OGC’s development of facts, by taking advantage of (or at least 

informing itself of) facts that may have already been developed in parallel investigations by other 

state or federal agencies. Indeed, it is hard to imagine what purpose is served by deleting OGC’s

authority to obtain “relevant information or documents” from other law enforcement agencies, 

other than to handicap OGC’s ability to develop enforcement matters under review.

For these reasons we strongly agree with the objections stated by the General Counsel to 

the policy changes proposed by the Republican Commissioners. In a recent memorandum to the 

Commission, the General Counsel stated:

For more than 20 years, the Federal Election Commission has freely shared 

enforcement information and records with the Department of Justice upon 

request. As a result of this information sharing, the Commission currently enjoys 

a strong relationship with DOJ. DOJ now reciprocates by freely sharing its 

enforcement information and documents with the Commission to the extent 

possible, and that information has greatly benefited the Commission’s efforts to 

enforce the Federal Election Campaign Act.

Memorandum of June 17, 2013 from Anthony Herman to the Commission, “Information Sharing 

with the Department of Justice,” at 1. He further stated:

The Commission should continue the practice of freely cooperating with DOJ—

including by sharing nonpublic enforcement information without a subpoena and 

without taking the unprecedented step of requiring case-by-case Commission 

approval. First, the Commission reaps many benefits from its relationship with 

DOJ, which OGC has worked for many years to foster. Those benefits would 

likely be lost if the Commission changes course now. Second, unimpeded 

information sharing is the norm among federal agencies—OGC has been unable 

to identify a single federal agency that requires subpoenas or Commissioner 

approval in every case, as members of the Commission have proposed here. 

Third, sharing enforcement information with DOJ is consistent with law. Fourth, 

sharing information with DOJ promotes the enforcement of FECA—a major 

reason why Congress constituted the Commission as an independent agency.
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Id. at 11 (emphasis in original).

We urge the Commission to follow this sound recommendation and to reject the proposed 

changes that would eliminate the free exchange of information between OGC and other law

enforcement authorities.

The second objectionable policy change proposed by the Republican Commissioners 

would impose artificial blinders on staff attorneys by sharply restricting the publicly available 

information they could use to develop enforcement investigations.

Under its longstanding practices, OGC has consulted “news articles and similar published 

accounts” in recommending whether the Commission should find “reason to believe” a violation 

has occurred and thus whether to open an enforcement investigation. But the revisions to the 

Enforcement Manual proposed by the Republican Commissioners would eliminate the ability of 

FEC lawyers to consult publicly available information, such as news stories, in deciding whether 

to recommend that the Commission open an investigation.

Thus, for instance, the Republican Commissioners propose to delete the following 

sources of information from consideration by OGC: (1) the use of Westlaw “to search for news 

articles and to find public information about corporations and individuals,” (2) Dun & Bradstreet

(which provides “comprehensive information on most U.S. businesses”), (3) Commercial search 

engines (presumably such as Google, that “can generate a list of potential information sources 

relevant to the facts of a matter,” (4) YouTube (“to locate video advertisements that might be at 

issue in a complaint”); (5) Candidate, Party or Political Committee Websites, and (6) “news 

articles” (which “may provide useful background information or reports of recent developments 

in a matter.”). Rep. Enf. Man., sec. 3.4.1.2 (proposed deletions).4

Instead, according to the Republican Commissioners, OGC should consult only (1) any 

complaint that has been filed, (2) the response to the complaint, (3) “information already in the 

Commission’s possession,” and (4) “official government websites that are publicly available.” 

Id.

This policy proposed by the Republican Commissioners is inexplicable and without any 

legitimate justification. It seeks to ensure that OGC will make recommendations that are 

untainted by readily available facts as if the agency’s wanton past use of Google has served to 

undermine the due process rights of respondents. Of course, the use of readily available public

facts can assist OGC in verifying (or casting doubt on) facts asserted in a complaint and in 

understanding the context of events, both of which serve the goals of making better 

recommendations to the Commission and better decision making by the Commission. Indeed, the 

Republican Commissioners propose to delete from the Enforcement Manual the statement, 

 4 In addition, as noted above, the Republican Commissioners also would delete the existing 

authority for OGC to obtain information from other law enforcement agencies, such as DOJ or the Office 

of Congressional Ethics. 
7

“Often, publicly available information will provide facts that are important in making a correct 

recommendation to the Commission.” Rep. Enf. Man., sec. 3.4 (proposed deletion).5

The proposals made by the Republican Commissioners to isolate OGC from other law 

enforcement agencies, and from publicly available factual information, bespeak of hostility by 

these Commissioners to effective enforcement of the campaign finance laws. Indeed, the larger

message of these proposals is to restrict and undermine OGC’s authority as much as possible in 

conducting enforcement investigations. To be sure, weak and ineffectual law enforcement has 

been the hallmark of the Commission in recent years. But it would further discredit the 

Commission and would undermine the interests of the public to impose even further constraints 

on its enforcement staff. 

The changes to the agency’s Enforcement Manual proposed by the Republican 

Commissioners will seriously undermine the ability of the federal government to enforce the 

campaign finance laws and should be rejected. Furthermore, no changes to the Enforcement 

Manual should be considered by the FEC until the two new nominees to the agency have been 

seated and a full complement of six Commissioners is available to make such decisions.

Sincerely,

/s/ Lawrence M. Noble /s/ J. Gerald Hebert /s/ Fred Wertheimer

Lawrence M. Noble J. Gerald Hebert Fred Wertheimer

Americans for Campaign Paul S. Ryan Democracy 21

 Reform Campaign Legal Center

Donald J. Simon

Sonosky, Chambers, Sachse

Endreson & Perry LLP

1425 K Street NW – Suite 600

Washington, DC 20005

Counsel to Democracy 21

Paul S. Ryan

The Campaign Legal Center

215 E Street NE

 5 In addition to being terrible policy, the proposal to willfully ignore publicly available information 

may also be contrary to law. See In re FECA Litigation, 474 F.Supp. 1044, 1046 (D.D.C. 1979) (“The 

Commission must take into consideration all available information concerning the alleged wrongdoing. 

In other words, the Commission may not rely solely on the facts presented in the complaint.”) (emphasis 

added); Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984); see generally Comments of Campaign Legal 

Center and Democracy 21 on Notice 2013-01 (Enforcement Process) (April 19, 2013) at 2-3. 
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Washington, DC 20002

Counsel to the Campaign Legal Center

Copy to: Ms. Shawn Woodhead Werth, Secretary & Clerk of the Commission

Lisa J. Stevenson, Deputy General Counsel, Law