- - Thursday, August 7, 2014

ANALYSIS/OPINION:

The Federal Election Commission (FEC) should have to answer to a federal judge as to why it refuses to follow its own disclosure rules and the law. The agency is hiding key information on how it sets disclosure standards for independent groups.

You read that correctly. The FEC refuses to disclose the full reasoning for its own disclosure rules.

This bizarre result is the culmination of a lengthy fight within the FEC after it dismissed a complaint alleging that Crossroads GPS, the 501(c)(4) organization affiliated with Karl Rove, was functioning as a PAC by engaging in too much political activity under federal campaign-finance laws. (Section 501(c)(4) organizations are permitted to engage in some candidate advocacy as part of their mission, but they may not make such advocacy their “major purpose.”)

In December 2013, the commission dismissed the complaint by a 3-3 vote. Because no more than three commissioners may be from any political party, four votes are required to authorize further, bipartisan FEC action.

The three Democratic appointees on the commission wanted to proceed with an intrusive investigation of the group, pointing to a document by the FEC’s general counsel making the case for proceeding. The three Republican appointees disagreed, pointing to a separate, earlier document from the FEC’s general counsel, which the three Democratic commissioners refused to release to the public.

The entire document’s 76 pages were all deemed too sensitive to be seen, and were completely redacted.

Any of the sitting Democratic FEC commissioners could have joined with the Republicans and allowed for disclosure of the document, but all three voted to keep the report secret.

It’s not hard to imagine why. Defeating your foe in the court of public opinion is a much easier task if your opponent’s argument is literally covered up by FEC lawyers. The plan worked. The ruling produced headlines such as, “Crossroads GPS probably broke election law, FEC lawyers concluded” and “FEC Believes Karl Rove’s Crossroads GPS violated campaign-finance laws.”

In reality, it appears the general counsel used two different legal theories on the same set of facts and, only one report saw the light of day. This is even more troubling because the FEC’s own regulations demand the release of First General Counsel’s Reports, and FEC rules adopted in 2009 encourage the release of any undisclosed reports under the Freedom of Information Act.

This concealment is particularly ironic, since disclosure is such a treasured value of those who wish to further regulate our already-Byzantine campaign-finance system, including the three Democratic appointees. Disclosure, in the words of two of the Democratic commissioners, “allows the media and voters to evaluate the true interests lying behind competing political messages.” Because of the FEC’s lack of disclosure, many significant questions remain.

Did the general counsel attempt to construct a new standard to evaluate the activity of Crossroads GPS, compared with the standards used on other groups in the past? Were the legal arguments different from those made in the publicly released general counsel’s report? If so, why did they change? The public and advocacy groups can only speculate because the FEC has blocked the report’s disclosure.

The commission should not hide this information. These documents are used by independent groups to divine the standards used by the FEC to determine whether a group’s advocacy forces it to become a heavily regulated political committee. Without this advisement, how is a group to know what kind of speech, or how much spending, will trigger a future FEC investigation? This legal guidance is absolutely essential because the commission does not have a bright-line rule on this issue, instead preferring to evaluate each supposed violation on a case-by-case basis.

Incredibly, one of the reasons the FEC gave for refusing disclosure was that it could “risk circumvention of the law.” That justification is backward. In the mind of the commissioners, groups trying to comply with the law should guess what the FEC is thinking because, if the commission actually explained their rules, groups might not comply. I imagine the FEC also thinks you should turn off your headlights when driving at night for fear of crashing into other drivers.

Months after the initial redaction and after the commission, by a 3-3 vote, denied a FOIA request for the report, the Center for Competitive Politics filed a lawsuit against the FEC to attempt to access the redacted report. The FEC has filed a motion to dismiss this complaint. Now it is up to the court to decide whether disclosure is as important for government officials as it is for citizens.

Unless the report is released, independent speakers will be left completely in the dark on how to conduct themselves when advocating for candidates. Many groups may not speak out at all for fear of legal repercussions.

Perhaps that is exactly what some of the regulators at the FEC want.

Scott Blackburn is a research fellow at the Center for Competitive Politics.

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