FEC struggles to appoint top lawyer

Introduction

The Federal Election Commission soon marks a dubious anniversary: one year with nobody directing its legal department.

That’s no trifle for an agency tasked with regulating and enforcing the nation’s campaign laws.

But for the FEC’s most recent general counsel, Tony Herman, who officially resigned from the agency July 5 to re-enter private practice after a turbulent two-year tenure, the leadership vacuum is predictable.

“In view of what I have described as a lingering ideological chasm at the commission, I’m not at all surprised that the position remains vacant,” said Herman, senior counsel at law firm Covington & Burling LLP.

Indeed, the six-member commission hasn’t agreed on much this year, continuing a years-long status quo for agency overseers evenly divided between Republican and Democratic appointees.

Of late, the FEC’s leaders have traded ideological hostilities in dueling op-ed pieces.

Commissioners clashed, and ultimately deadlocked, on accepting its legal department’s assessment that conservative nonprofit group Crossroads GPS likely violated federal political spending rules.

And the commission couldn’t agree on how to resolve several notable cases, such as whether to require disclaimers for mobile device-based political ads. Even when commissioners do agree on a high-profile matter — the acceptance of Bitcoin by political committees, for one — they sometimes don’t completely agree.

Given this, it’s perhaps little mystery why the commission hasn’t yet settled on a general counsel — just one of two FEC staff officers (the other being staff director) prescribed by federal election law. No current staffer has been elevated to “acting” general counsel, either, as the FEC has done for several other high-ranking and vacant positions, such as chief financial officer and director of accounting.

Among the general counsel’s numerous duties: managing about one third of the agency’s staff, pursuing political scofflaws and advising the commission on “all legal matters,” including how to interpret campaign statutes and regulations.

Without a general counsel, the FEC’s legal office will likely operate “more cautiously, if not more timidly” in carrying out its work, said Larry Norton, a partner at law firm Venable LLP who served as FEC general counsel from 2001 to 2007.

For example, don’t expect today’s leaderless Office of General Counsel to tussle with commissioners on the issue of communicating with the Department of Justice, as it did under Herman.

“And there’s probably little or no long-term planning going on,” Norton added.

Several FEC officials confirmed that the commission has recently interviewed a small number of general counsel candidates, although no final selection appears imminent.

“We are currently reviewing applicants in a thoughtful and deliberative process,” FEC chairman Lee Goodman, a Republican, told the Center for Public Integrity. “The selection of a general counsel is an important decision and we want to choose a well-qualified attorney who has all the necessary professional qualities to succeed.”

Said Democrat Ann Ravel, the commission’s vice chairman: “I believe that a general counsel probably will be appointed in the next few months. Although the GC staff is very talented, it is important to have a general counsel to provide guidance on legal issues and on how to navigate the political aspects of the FEC.”

As a practical manner, a general counsel candidate that swings much to the political left or the right — no matter how talented and qualified — is unlikely to be seriously considered by the ideologically divided commission.

“Generally speaking, commissioners on both sides have at times viewed the Office of General Counsel with suspicion and regarded it as either supporting the other side on certain issues or taking OGC’s own position,” said Eric Wang, special counsel at law firm Wiley Rein LLP and former staff attorney for FEC Commissioner Caroline Hunter, a Republican. “The position requires someone who not only knows the law well and is a good attorney, but also is a good mediator and not merely an advocate for his or her own views, or the views of certain commissioners.”

With the commission so divided, it may behoove commissioners to take their time, several former FEC officials say.

“Having the wrong person as FEC general counsel would be worse than leaving the position vacant,” said former FEC Chairman Dave Mason, who served on the commission from 1998 to 2008 and is now a senior vice president at campaign consultancy Aristotle. “If the commissioners can find the right person — and I’m sure they’d all be delighted — he or she might help forge consensus on some policy or enforcement issues.”

All the same, it’s “not ideal to have a vacancy for as long as it’s been,” said Michael Toner, another former FEC chairman (2002-2007) who is now a Wiley Rein LLP partner. The FEC as a whole, he added, would benefit from a general counsel with strong management and administrative credentials.

So who’d want the general counsel job in the first place?

By lawyerly standards, at least, it doesn’t pay much: $147,200 annually, according to an official posting for the general counsel job.

That’s less than a highly qualified executive assistant to an FEC commissioner stands to make, thanks in large part to Congress’ unwillingness, so far, to give the agency more flexibility in determining a general counsel’s salary.

In a fleeting show of unity, the FEC last year unanimously recommended to Congress that the general counsel position be given higher salary potential, arguing that the change “would ensure that the commission is better able to compete with other government agencies in recruiting and retaining key management personnel.”

Then there’s the issue of working for six bosses who often harbor wildly different views on legal and policy questions.

Nevertheless, “I’d encourage people to go for it,” said Kenneth Gross, a former FEC associate general counsel who’s now a political law partner at law firm Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates.

“They have to have their eyes open to some of the battles at the commission level,” Gross said. “But there are a lot of good lawyers who work hard at the FEC. You’d provide substantive advice and direction.”

Added Toner, the former FEC chairman: “It’s almost like managing a mid-sized law firm in D.C. It’s an important job.”