“Robert E. Rutkows!

To <secretary@fec.gov>,
08/02/2013 03:44 PM cc

Oppose Effort by Representative Candice Miller to Press for
Subject Premature FEC Action on Controversial Proposal to
Undermine Enforcement

Ellen L. Weintraub, Chair
Federal Election Commission
999 E Street, NW
Washington, DC 20463

(800) 424-9530
secretary@fec.gov

r-Oppose Effort by Representative Candice
Miller to Press for Premature FEC Action on
Controversial Proposal to Undermine
Enforcement

Dear Chair,

Ina letter, http:/Awww.democracy21.org/wp-content/uploads/2013/08/REFORM-GROUP-LETTER-FEC-
CHAIR-WEINTRAUB-ENFORCEMENT-MANUAL-8-2-131.pdf, sent today to you, reform groups
expressed strong opposition to the position taken by Representative Candice Miller (R-MI), Chairwoman
of the House Administration Committee, in which she criticized the FEC for failing to adopt an agency
Enforcement Manual and urged the Commission to act promptly on the matter.

The FEC should not consider adoption of the agency's Enforcement Manual, and whether to accept
proposed changes to the General Counsel's draft of the Manual, until the two recently nominated
Commissioners have been confirmed by the Senate. Once that occurs the FEC will again have a full
complement of six Commissioners — including three Commissioners chosen by Republicans and three
Commissioners chosen by Democrats.
The makeup of the FEC is currently unbalanced because of a vacancy in one of the Democratic
seats. Given that the Senate Rules Committee has held hearings on the two pending FEC
nominees, and the nominations appear to be non-controversial, there is every reason to believe
their confirmations will occur in the near future and the imbalance will be ended.

Waiting until there are six Commissioners to act on the Enforcement Manual will ensure that
decisions on the Manual will not be made on a partisan basis. These decisions include the major
changes proposed to the General Counsel's draft by the three Republican Commissioners


Representative Miller is wrong in urging you and the Commission to vote on the Enforcement Manual
during the window of time in which one party holds a temporary partisan majority on the Commission.
Representative Miller's position goes against the very premise of the way in which the agency has long
been structured, which is to require bipartisan support for agency actions.

Once the two new Commissioners are seated the FEC should consider the agency Enforcement
Manual. But as spelled out in their letter of July 19", they strongly disagree with key changes in
the Enforcement Manual that have been proposed by the three Republican Commissioners.

These proposed changes would hobble the ability of the General Counsel's office to work with
other federal enforcement agencies, and would require the General Counsel staff to willfully blind
itself to publicly available information in making recommendation to the Commissioners on
whether to undertake enforcement investigations. These proposals would seriously undermine
effective enforcement of the nation’s campaign finance laws.

The Enforcement Manual, and any proposed changes to it, should be considered by the
Commission only after there is a full complement of six Commissioners to act on the matter and
should only be adopted only if four Commissioners vote to do so.

Defenders of the FEC’s current structure often point to the need for bipartisan decision making as
one of the strengths of the statutory requirements that no more than three of the six
Commissioners can be from the same party and that four votes are needed for significant
Commission actions. These requirements ensure that decisions to take action on significant
matters will be made only if there is at least one vote from a Commissioner of each party.

Yet when it comes to considering the proposed Enforcement Manual, Representative Miller is
urging the agency to act right now — while there are only five Commissioners in office, including
three Republican Commissioners.

Although | believe the matter is open to serious legal question, some claim that the current
situation would allow the agency to act on the basis of a three-vote “majority,” and thus to adopt
the Enforcement Manual by a purely partisan vote. This would allow the three Republican
Commissioners, one of whom is expected to leave the Commission shortly, to adopt their
proposed changes to the Enforcement Manual without the support of any Democratic
Commissioner.

Furthermore, this would deny the Democratic and Republican nominees who are expected to be
seated on the agency soon, the opportunity to participate in an important agency decision whose
consequences they will have to live with. And it would do so at a time when there is no pressing
need for the FEC to act on this matter.

The Enforcement Manual, and any proposed changes to it, should be considered by the
Commission only after there is a full complement of six Commissioners to act on the matter and
should be adopted only if four Commissioners vote to do so.

Scheduling the matter for a vote now, absent six commissioners, is tantamount to ceding control
of future agency enforcement procedures to a partisan decision made by just three
Commissioners.

I strongly urge you and the Commission not to take such ill-advised and inappropriate action. |
strongly urge that no consideration of the Enforcement Manual take place until the pending
nominees are seated and the Commission is at full strength with six Commissioners.

Thank you for the opportunity to bring these remarks to your attention.


Yours sincerely,
Robert E. Rutkowski

cc: House Minority Leadership

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