At last week’s open meeting of the Federal Election Commission, the commission voted 4-2 to take no further action on a proposal to allow third parties to publicly comment at commission meetings regarding advisory opinion (“AO”) requests. Audio discussion of this portion of the meeting is now available. The proposal was supported with a joint letter from two campaign finance reform groups, the Campaign Legal Center (“CLC”) and Democracy 21 (“D21”). These groups were the only two groups to provide any comment at all, but this was only one prong in their effort: what just failed administratively remains before the House of Representatives. That is, this is but one effort by these campaign finance “reform” groups to join the FEC’s AO process.
An AO request is a process by which a person or group writes to the FEC asking how federal election law or related FEC rules and regulations apply to a specific set of facts, if at all. The FEC has 60 days to respond to a request. The process gives people and organizations a quick resolution (assuming the FEC can come to a majority opinion) and, though far from perfect, serves as one of the few ways people can realistically approach the Commission without legal counsel. (One requestor without an attorney was before the FEC in the last meeting.) Third parties are allowed to comment on AO requests, but the law only requires the FEC to “accept written comments submitted by any interested party within the 10-day period following the date the request is made public.” In 2009, the FEC decided to allow requestors or their legal counsel to sit for questions from the commission during open meetings when the AO was considered, largely to confirm facts about the requestor’s activity.
At Thursday’s meeting, FEC Chair Ann Ravel stated she was “the initiating force” behind the new third-party proposal, which was presented to the commission in a memo drafted by the agency’s Office of General Counsel. The memo is worth reading, as it does a good job balancing the pros and cons of allowing greater third party participation in the AO process. The commission engaged in a good discussion over most of the issues raised by the memo, the most compelling of which honed in on requestors without legal counsel. It is difficult enough to engage the FEC and its attorneys without a lawyer; engaging both the government and outside interest groups is a far greater chore.
Like in last month’s meeting, opposition to the proposal by Chair Ravel—who was appointed as a Democrat—did not simply come from Republican commissioners. In fact, once again Commissioner Steven Walther—a Democrat—provided one of the best summaries of the concern with the proposal:
“I can see where a requestor now, poor old guy walks in and has a request and the next thing you know somebody’s there with their counsel, and somebody’s calling in, and we have three people in the audience who want to speak—and they’ve written in already—and they may or may not have some expertise or a particular axe to grind, and we’re here all day trying to sort things out when all there was was a very narrow question. It has to be confined to a very narrow set of facts. So, I have some trepidation about that until we think amongst ourselves what we really want the general counsel to do rather than to have them make up an approach.”
CLC and D21 grind a lot of axes at the FEC already. Since 2010, CLC and D21 have filed or joined written AO comments (nearly always jointly) no less than 21 times, more than any other organizations. In only one instance, in a request from “Red Blue T LLC” (AO # 2012-17) and some other companies, did CLC (but not D21) fully support the requestor. Usually—almost universally—CLC and D21 stand against requestors, offering the narrowest interpretation of laws and cases that respect political activity and the broadest interpretation of laws and regulations that restrict it. Obviously, both groups—CLC in particular—could make a great deal more noise (and perhaps generate more press) by having a seat at the table during AO discussions. That this would bring previously unknown facts or legal interpretations to the attention of the FEC is a far more dubious supposition.
With a 4-2 vote against, the FEC probably won’t move forward on third party AO involvement any time soon. But the story is far from over. Late last month Representative Derek Kilmer (D-WA) introduced the “Restoring Integrity to America’s Elections Act.” Though garnering some press coverage, the only group to weigh in on the bill at the time of its introduction was, again, CLC. A few weeks before introducing the bill, Rep. Kilmer had Trevor Potter—CLC’s president—join him on a “tele-town hall” back in his district, where Kilmer was “expected to announce the introduction of a bill to fix problems with the [FEC].” The bill is rife with bad ideas, but tucked later in the bill (page 15) is an amendment to the current law that will now be familiar to readers:
(e) To the extent that the Commission provides an opportunity for a person requesting an advisory opinion under this section (or counsel for such person) to appear before the Commission to present testimony in support of the request, and the person (or counsel) accepts such opportunity, the Commission shall provide a reasonable opportunity for an interested party who submitted written comments under subsection (d) in response to the request (or counsel for such interested party) to appear before the Commission to present testimony in response to the request.
(Emphasis added.) Certainly, this is much more of an unequivocal directive than anything considered by the FEC last week. The addition would completely transform AO hearings into an adversarial hearing, with CLC and D21 happily taking the adversarial role.
Interestingly, there was no mention of this provision of Kilmer’s bill in CLC and D21’s letter to the FEC supporting the internal third party proposal, nor was this part of the bill even mentioned in CLC’s press release supporting the bill. Although the “Restore Integrity” bill will likely not go very far in the House, at the very least it evinces that current law aims to limit the AO process. Furthermore, given CLC’s ties with Rep. Kilmer, perhaps simply out of politeness it would have served the organizations to note to the FEC that Congress is considering such a proposal (one that I’m willing to bet CLC suggested or even had a role in drafting).
There is already ample third party involvement with the FEC’s AO process. Third parties can even sue the agency (and do!) when it takes or refrains from actions they disagree with. It is certainly frustrating when the FEC deadlocks on an AO request and does not provide meaningful guidance to requestors, but increasing third party involvement in the official process would, at best, not improve that or, at worst, muck up the process even further. But, clearly, such involvement is important to CLC and D21, and I expect even Rep. Kilmer’s bill will not be their final move in this effort.