From: Kathryn Beard <KBeard@democracy21.org>

To: undisclosed-recipients:;, 

Date: 08/02/2013 09:51 AM

Subject: Reform Groups Oppose Effort by Rep Miller to Press for Premature FEC Action on Controversial 

Proposal to Undermine Enforcement

August 2, 2013

By Email

Ellen L. Weintraub

Chair

Federal Election Commission

999 E Street NW

Washington, DC 20463

 

 Re: Statement of Representative Miller regarding the 

FEC Enforcement Manual

Dear Chair Weintraub:

 Our organizations are writing to express our strong opposition to the position taken by 

Representative Candice Miller (R-MI), Chairman 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.

 Our organizations include Americans for Campaign Reform, the Brennan Center for 

Justice, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, 

Common Cause, Democracy 21, Demos, the League of Women Voters, Public Citizen, Sunlight 

Foundation and U.S. PIRG.

 As we stated in a July 19, 2013 letter to Commissioners, we believe that 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. 

 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 we 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.

 We believe that 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.

 We believe that once the two new Commissioners are seated the FEC should consider the 

agency Enforcement Manual. But as spelled out in our letter of July 19th, we 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 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. 

We strongly urge you and the Commission not to take such ill-advised and inappropriate action. 

We 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.

Sincerely,

Americans for Campaign Reform Democracy 21

Brennan Center for Justice Demos

Campaign Legal Center League of Women Voters

Citizens for Responsibility Public Citizen

 and Ethics in Washington Sunlight Foundation

Common Cause U.S. PIRG

Copy to:

 Representative Candice Miller

Commissioner Donald F. McGahn, Vice Chair

 Commissioner Caroline C. Hunter

 Commissioner Matthew S. Petersen

 Commissioner Steven T. Walther