- The Washington Times - Friday, June 20, 2003


A federal appeals court yesterday blocked the Federal Election Commission from releasing documents from its investigation into political coordination between the AFL-CIO and the Democratic Party, upholding a lower court order.

Writing for the three-judge panel in Washington, Appeals Court Judge David Tatel said releasing the documents would infringe on the free-speech rights of the union and the party. The FEC could tailor its disclosure policy to avoid such infringement, he wrote.

FEC spokesman Bob Biersack said it was too soon to say whether the commission would appeal to the Supreme Court. Since the lower court ruling, the FEC has been releasing only material the commission produced and used in its decision making, such as reports from its general counsel and commissioners’ statements, rather than documents that came from those under investigation.

The FEC had appealed a December 2001 ruling by U.S. District Judge Gladys Kessler barring the commission from releasing thousands of pages of documents from its probe of 1996 election activity by the labor union and the Democratic National Committee.

The AFL-CIO and the party sought to keep the documents secret. They argued many of the records outlined proprietary information such as campaign strategy, polling and other election activities, and that revealing them to their political rivals and the public would chill the ability of the two groups to participate effectively in politics.

“We think the court’s emphasis on First Amendment considerations here was just right,” AFL-CIO attorney Larry Gold said. “We thought the long-standing policy of dumping virtually the entire investigative file in the public record was unfair and invited abuse by political opponents filing complaints in order to access strategic information.”

Campaign-finance watchdog groups, including the nonpartisan Center for Responsive Politics in Washington, had asked the appeals court to allow the document release.

Larry Noble, executive director at the center, said the ruling will make it harder for the public to determine whether the FEC has a legitimate basis for dismissing complaints when it does. The commission consists of three Democrats and three Republicans and often divides along partisan lines in enforcement cases; it cannot take action unless there are four votes.

“For many years, there’s been a concern about the way the FEC enforces or doesn’t enforce the law,” said Mr. Noble, a former FEC general counsel. “One of the checks on the FEC has been the ability of the public to look at the evidence before the agency, which this opinion now denies the public.”

The FEC investigated after Republicans filed a complaint accusing the union of illegally spending up to $35 million to help Democratic candidates and illegally coordinating ads and other campaign activities with the Democratic Party.

The FEC concluded that the Democratic National Committee and the AFL-CIO had closely coordinated their election activities but hadn’t broken the law. It cited a federal court ruling that set a stricter standard for illegal coordination.

The Associated Press reported the contents of the investigation’s documents in July 2001. Among the coordinated activities, union representatives served on state steering committees to help approve or reject Democratic campaign plans.

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