At the Federal Election Commission, no watchdog for the watchdogs

Introduction

When Beverly Davis began disqualifying numerous applicants for the Federal Election Commission’s vacant inspector general job — including a long-time staff attorney for Commissioner Matthew Petersen — agency superiors protested.

Accusations and allegations flew. A turf war ensued.

Davis said she was “attacked, retaliated against and bullied” into reassessing the qualifications of applicants she deemed subpar. After being overruled, Davis closed the job opening for the position — the agency’s internal watchdog — and resigned from her job as a senior human resources specialist, forcing the FEC to restart its search. The position has now been open for more than two years.

The May 2018 fracas, described in interviews and a series of internal emails obtained by the Center for Public Integrity, is but one of several stumbles that have helped render the FEC’s inspector general office effectively nonfunctional since November, when the lone deputy inspector general quit.

This matters because the inspector general office investigates waste, fraud and abuse at the FEC, including accusations against commissioners. The bipartisan FEC is itself responsible for enforcing and regulating national campaign finance laws but has long been hamstrung by ideological divisions, low staff morale and other long-standing vacancies, including two of six FEC commissioner slots.

So the lack of an inspector general means no one is watching the election watchdog — at a time when few feel the FEC is functioning effectively, even as its missions are evermore important. The FEC’s struggles are set against the backdrop of an accelerating chase for presidential campaign cash and prominent political money scandals — alleged porn actress hush-money payments and foreign infiltration among them.

Scammers are also increasingly preying on vulnerable Americans who are misled into believing they are supporting a candidate or cause — an issue the FEC has struggled to address.

Some in Congress are growing impatient.

“I intend to ask for their plan to fill longstanding and important vacancies at the commission, including the inspector general position,” said Rep. Zoe Lofgren, D-Calif., chairwoman of the Committee on House Administration, which has FEC oversight responsibilities. Lofgren is a co-sponsor of H.R. 1, a sweeping ethics reform bill that calls for an FEC overhaul, and has promised to soon conduct the first oversight hearing on the FEC since 2011.

Update, 2:22 p.m., April 3: Lofgren has sent FEC commissioners a letter, dated April 1 and containing 46 questions, about the agency’s operations, including the inspector general and general counsel offices. The letter also asks about the “root causes of low employee morale” and the FEC’s backlog of enforcement cases. Lofgren gave commissioners until May 1 to respond.

Sen. Amy Klobuchar of Minnesota, the ranking Democrat on the Senate Committee on Rules and Administration, “strongly supports the swift hiring of a new inspector general at the FEC,” said her spokeswoman, Elana Ross. (The office of committee Chairman Roy Blunt, R-Mo., did not return requests for comment.)

FEC Chairwoman Ellen Weintraub, a Democrat, says she expects the commission will select an inspector general soon, either on a permanent or “acting” basis. Petersen, the Republican vice chairman, concurred.

“We need an IG, we want an IG and we’re all spending a lot of hours trying to get the best person for the job,” said Weintraub, who declined to discuss specifics about the search. “Yes, we’ve run into some unforeseen circumstances, some hiccups along the road.”

A long road it’s most certainly been. And it hasn’t ended yet.

‘Integrity … breached’

The FEC’s inspector general office enjoyed nearly three decades of relative stability. That changed in March 2017, when FEC Inspector General Lynne McFarland, who’d occupied the post since 1990, retired.

Since then, the office has been buffeted by turbulence.

At first, FEC commissioners, that year led by independent Steven Walther as chairman, simply didn’t post an inspector general job opening. That left Deputy Inspector General J. Cameron Thurber as the short-handed office’s de facto leader — the commissioner never officially named him “acting” inspector general.

Two particular situations, both involving commissioners, also contributed to the panel’s hands-off approach.

First, the inspector general’s office was investigating a complaint made by the nonprofit Cause of Action Institute, which had accused Weintraub of violating ethics regulations by using “government property and official time” to demand Trump prove his claims that voter fraud occurred in New Hampshire during the 2016 election. By 2018, the FEC inspector general’s office had cleared Weintraub of any wrongdoing, but the matter led to her recusing herself from the FEC’s inspector general search for many months.

Secondly, Trump in September 2017 nominated Petersen, the Republican FEC commissioner, to serve as a federal district judge. Petersen paused his involvement in the inspector general search when his staff attorney — Jonathan Borrowman, a well-respected University of Michigan Law School graduate — expressed interest in the inspector general job. (Petersen withdrew himself from consideration in December 2017 after a disastrous Senate confirmation hearing, and he has since remained at the FEC.)

The FEC formally opened the inspector general job for applications in March 2018. Dozens applied for the position, which pays up to $174,500 annually.

But several agency staffers grew concerned that the human resources department, which is typically charged with weeding out applicants who don’t meet minimum qualifications, sorted too aggressively.

“I am hereby directing HR to provide the applications for ALL applicants including those applicants that were eliminated because they did not meet the minimum requirements to the panel members,” Edward Holder, then an acting deputy staff director, wrote on May 3, 2018, to then-Human Resources Director Derrick Allen. He followed up again on May 10 and May 14.

On May 15, Allen complied  — but not without objecting. He wrote in an email to Holder that his office “maintains its opinion that the applicants below did not meet minimum qualifications; and I have advised that this practice is not appropriate.”

Two days later, Katie Higginbothom, then an FEC assistant general counsel, wrote to FEC Acting General Counsel Lisa Stevenson that she had reviewed the candidates the human resource department had deemed unqualified. She recommended that many of them be reinstated, including Borrowman. (Higginbothom declined a recent interview request.)

Davis, the human resources specialist who had initially disqualified many inspector general candidates, objected.

In a May 23 email to Weintraub and then-FEC Chairwoman Caroline Hunter, a Republican, Davis accused Holder, the acting deputy staff director, of calling her “ignorant” and throwing her out of his office. She declared the FEC’s actions “illegal.”

“[I]t appears that the integrity of the Inspector General position has been breached,” Davis wrote.

Soon after, Davis, who along with now-retired Holder could not be reached for comment, took the drastic step of yanking the job posting and resigned from the FEC.

No one person is vested with sole discretion of posting and removing FEC job openings, and such action “should be done in consultation with senior management,” Petersen said. But by then, agency officials had little choice but to follow federal government guidelines and restart the inspector general search from the beginning.

A new job posting went live in July. But other problems loomed.

An investigation by the integrity committee of the Council of the Inspectors General on Integrity and Efficiency, an independent government entity, concluded in March 2018 that an FEC inspector general official “engaged in substantial misconduct” by “wrongfully” accepting a performance bonus from the FEC, according to a summary of its investigation report. The summary didn’t name names, but two sources at the FEC confirm Thurber was the investigation’s subject.

Faith R. Coutier, assistant general counsel for the council, declined to comment or release the integrity committee’s full report.

FEC commissioners declined to discuss the report, but Petersen stressed that Thurber was a “respected employee.” Weintraub said Thurber left the agency “of his own volition” in early November 2018. Thurber did not respond to requests for comment.

In a letter to Congress immediately before leaving the FEC, Thurber praised his staff, which he said “continued to perform exceptionally well and has taken on tasks beyond their normal duties, in part due to office vacancies.”

A hire. Then not.

After Thurber’s departure, the FEC’s inspector general office, current staffers for which declined to comment, had no director of any sort. Without a leader, the office’s five remaining employees — the inspector general’s staff counsel, an assistant, an investigation specialist and two auditors — couldn’t conduct formal investigations or audits or issue reports of its findings.

The FEC’s inspector general office last released a public report five months ago, when it noted among other findings that FEC management has yet to adequately address 50 of its recommendations, some seven years old. 

It also wrote in a separate report that the FEC “lacks continued stability in key senior leadership positions,” including inspector general, concluding this represents a “very high risk” for the agency.

By mid-November, however, an inspector general hiring appeared imminent. FEC management wrote to the inspector general’s office that commissioners have “recently selected an Inspector General,” and the FEC said in a statement at the time that it “should be in a position to announce a new appointment shortly.”

They were not.

December arrived. Still no appointment. The federal government then partially shut down on Dec. 22, as Trump and Congress battled over funding for a wall on the nation’s southern border. For the next 35 days, the FEC remained shuttered.

When the FEC reopened in late January, it resumed its inspector general hiring process. Mark Thorum, an assistant inspector general for management and policy at the Export-Import Bank of the United States, emerged as a leading candidate, according to sources familiar with the hiring process who spoke anonymously because they were not authorized to comment on the search.

But after FEC commissioners obtained more information about Thorum’s work at the Ex-Im Bank, they decided not to hire him.

Weintraub, Petersen and Hunter declined to comment on Thorum’s candidacy, and Walther did not return requests for comment this week. Thorum did not return messages seeking comment, and Elizabeth Sweetland, counsel to the Ex-Im Bank’s acting inspector general, said her office does not comment on personnel matters.

‘Public interest is put at risk’

It’s not uncommon for federal government agencies to at times go weeks, even months or years, without a permanent inspector general.

That’s particularly true at larger agencies whose inspectors general are nominated by the president and confirmed by the U.S. Senate — not selected internally, as is the case at the FEC, according to a 2018 General Accountability Office report.

What’s not nearly as common is an inspector general’s office, such as the one at the FEC, going months without any leader at all, thereby unable to function.

“The public interest is put at risk, and it’s particularly at risk when you have a non-functioning office,” said Dan G. Blair, senior counselor and fellow at the Bipartisan Policy Center, which published a 36-page report last year recommending improvements to the federal government’s inspector general function.

Several former FEC commissioners generally concurred, as did several former high-ranking staffers.

“A thoughtful, constructive IG can improve the agency,” said Lee Goodman, a Republican commissioner from 2013 to 2018.

Bradley Smith, a Republican commissioner from 2000 to 2005, said he’d like to see the FEC’s inspector general office investigate whether an agency employee or employees purportedly behind the often anti-Republican @altFEC Twitter account “appropriately recused themselves from matters on which they demonstrated clear bias.” But that’s not possible now, he added.  

James Valvo, counsel and senior policy adviser for the Cause of Action Institute, which prompted the FEC inspector general office to investigate Weintraub, said he believes the FEC inspector general’s office took his organization’s complaint seriously even if it didn’t concur.

“It is unfortunate that the IG post at the FEC remains unfilled” he said, adding that a permanent appointment should be made “as soon as possible.”