Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 11, 2016

Obstruction Based on Rank Partisanship at FEC?

With a temporary majority at the Federal Election Commission, Republicans may vote this week to end the close working relationship between the FEC’s Office of General Counsel and the Department of Justice.

With the Republican having a 3 to 2 advantage and the general counsel having left the commission last Friday, the timing of a discussion and vote may be unique. The working relationship and sharing of information about possible criminal violations by candidates, members of Congress and other committees, may be hampered if the commissioners vote to stop the current practice.

Anthony Herman, the FEC general counsel until he left the commission last Friday, drafted a detailed analysis and background report on the information sharing with the Department of Justice over the last 20 years. The report detailed specific examples of cooperation on numerous matters. He submitted it to the commissioners at the end of June.

Herman stressed that “sharing information with DOJ promotes the enforcement of the FECA …” “Record and information sharing with DOJ not only promotes DOJ’s enforcement of the Act, but the Commission’s enforcement as well. As discussed above, as the Commission increased its efforts to freely and openly cooperate with DOJ in the 1990s and 2000s, DOJ has responded in kind and provided the Commission with valuable information that has helped the Commission fulfill its independent role as the prosecutor of civil violations of the Act.”

The general counsel’s conclusion stated: “The Commission and OGC [Office of the General Counsel] have worked for years to achieve the mutually beneficial relationship the Commission enjoys with DOJ today.  Those efforts – and the multiple benefits that have accrued to the Commission and the regulated community as a result – should not be wasted on unnecessary impediments to information sharing between the Commission and DOJ.  Any steps that would make it more difficult for the Commission to share with DOJ would put the Commission out of step with other independent federal agencies, while resulting in no offsetting benefits to the Commission or the political community.  It would open up the Commission to charges of obstruction based on rank partisanship.  The Commission should therefor continue its long-established practice of freely cooperating with DOJ – as it has for more than 20 years.” [Emphasis added in bold.]

The proposals to end the FEC relationship with the Department of Justice are being pushed by Republican Commissioner Donald McGahn, according to an editorial in the New York Times. The editorial was entitled “Sabotage at the Election Commission.” Although McGahn is currently a commissioner, his term as a commissioner has ended and President Barack Obama has named a Republican to replace him. A Democrat has also been named to fill the seat vacated by Cynthia Bauer, who resigned effective Feb. 1, 2013. Both will need Senate confirmation.

The FEC has not made public the text of the proposals for this week’s meeting, but when made public they should appear here.

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