Money and Democracy

Published — June 30, 2015

Gridlocked elections watchdog goes two years without top lawyer

FEC’s inaction hamstrings enforcement process, critics say


The Federal Election Commission, a bipartisan agency charged with enforcing and administering the nation’s campaign laws, will next month zoom past a fairly preposterous milestone given its mission: two years without anyone leading its nonpartisan legal office.

Such a power vacuum persists amid what will assuredly become the longest and most expensive presidential race in U.S. history, with candidates of all political persuasions waltzing along the increasingly blurry boundaries of what’s legal during federal elections and what’s not.

FEC commissioners parsing the legality of candidates canoodling with their supportive super PACs? Regulating so-called “dark money” flowing freely into elections?

Forget it.

The general counsel stalemate is emblematic of the FEC’s broader ideological cold war with itself, waged by commissioners who, for example, spent much of a recent public meeting debating whether they’re actually people — or, alternatively, aliens — for the decidedly odd purpose of petitioning their own gridlocked agency to write new campaign finance rules.

Three FEC employees familiar with the general counsel hiring process tell the Center for Public Integrity that conservative commissioners insist on a person who reliably supports political actors’ ability to campaign with minimal restrictions. And they don’t want a bomb-thrower who frequently clashes with them.

Liberals, for their part, refuse to back someone who won’t press for a more tightly regulated election environment. They’d particularly love a general counsel who believes the law compels all organizations — namely nonprofit groups — to reveal their donors when advocating for or against political candidates.

The FEC had, late last year, identified two potential general counsel candidates after what was already an unprecedentedly long search for a top lawyer.

But FEC commissioners couldn’t agree on one of the candidates — it takes four of the agency’s six commissioners to appoint a general counsel — and never put the person up for a formal vote.

The other general counsel candidate accepted a job elsewhere.

Since then, FEC commissioners have made no meaningful progress. Once advertised on the federal government’s jobs website, the general counsel position is no longer posted. The agency’s top Republican and Democrat acknowledged they aren’t formally considering candidates at the moment, and lawyers aren’t exactly clamoring to be hired by an agency deemed by its own leader to be “worse than dysfunctional.”

“It’s extremely demoralizing to the agency and the employees of the agency not to have anyone in this position,” said Ann Ravel, a Democrat who’s halfway through her one-year term as the FEC’s chairwoman and generally backs tighter campaign finance rules. “There was no appetite from the majority of the commission to fill that position.”

Matthew Petersen, a Republican and the FEC’s vice chairman, said that “all of us will agree it’s far from ideal not to have this position filled” and that he’ll work with fellow commissioners this summer to determine “what would be the best way now to go about filling it.”

Further complicating matters is one point on which Ravel and Petersen do agree: The general counsel job doesn’t pay nearly enough.

Congress has ignored requests by FEC commissioners to raise the position’s salary cap — it was last advertised at $147,200 per year, which is hardly workman’s wages, but far less than what prominent private-sector election lawyers make. Consider an assistant general counsel for the National Labor Relations Board stands to earn up to $183,300 annually.

Petersen and Ravel say the position’s relatively modest pay has hurt the agency’s ability to attract good candidates in the first place.

Regardless, general counsel is one of two positions at the FEC (the other is staff director) mandated by federal statutes.

It’s a powerful position. The general counsel’s many functions include overseeing the FEC’s enforcement, litigation, policy, complaints and legal administration divisions. He or she also serves as FEC commissioners’ chief nonpartisan adviser on legal issues, helping determine what matters they prioritize.

It used to be that transitions between FEC general counsels were smooth, even perfunctory.

Until now, the agency had never gone a full year without a bona fide general counsel. Typically, gaps lasted only a few months. Even during times when the FEC lacked a permanent general counsel, commissioners almost immediately designated one of their top staff lawyers as an “acting general counsel.”

And during 2011 — no less a period of ideological turbulence among liberal and conservative commissioners — the commission unanimously appointed lawyer Tony Herman as its general counsel, balancing (among other factors) his history of donating money to Democratic political candidates against his resume representing big business as a private law practitioner.

But Herman quickly grew weary of the commission’s antics. He resigned on July 5, 2013, in part frustrated by constant infighting and the body’s unwillingness to act on variety of legal recommendations his office made to it.

One particularly high-profile matter involved the Herman-led FEC general counsel’s office asserting that conservative nonprofit group Crossroads GPS likely broke federal law by spending too much money on politics. The commission couldn’t muster the requisite four votes needed to affirm Herman’s finding — and dismissed the matter nearly three years after the FEC first began investigating it.

It also sparred with him over how much information his office could share with the Justice Department, which, unlike the FEC, has power to pursue suspected election scofflaws with criminal charges.

Herman is now again a partner at Covington & Burling LLP, one of Washington, D.C.’s more prominent law firms.

“It’s all bad — it’s bad for the agency, it’s bad for the staff, it’s bad for the public,” Herman said of the FEC operating without a general counsel. “It’s a reflection of the polarization at the agency among the commissioners.”

Other former top FEC lawyers concur with Herman.

“There was a sense of shame in the past that doesn’t exist now,” said Lawrence Noble, the FEC’s general counsel from 1987 to 2001 and now senior counsel with the Campaign Legal Center, a nonpartisan campaign reform organization. “It’s clear now [commissioners] don’t want anyone making recommendations they disagree with.”

Said Wamble Carlyle attorney Jim Kahl, an FEC deputy general counsel from 2002 to 2007: “Clearly, it’s going to be a challenge to find a general counsel given the state of relationships over there now.”

For now, the FEC’s general counsel duties are shared by the agency’s two deputy general counsels, Gregory R. Baker and Lisa J. Stevenson.

In addition to lacking a firm commission endorsement, Baker and Stevenson, who declined to be interviewed, are hurting for help: Two of the FEC’s three associate general counsel positions, like the general counsel post, are also vacant. They’re filled in the meantime on an “acting” basis by lower-ranking attorneys. FEC fine assessments, once in the millions of dollars annually, have dropped to historic lows.

When someone without a commission mandate assumes a general counsel’s duties, “you’ve upset the agency’s balance, and you’ve weakened the ability of that person to fulfill his or her statutory mandate,” said Larry Norton, a partner at Venable LLP who served as FEC general counsel from 2001 to 2007. “You can’t act with strength and independence.”

The size of the FEC’s Office of the General Counsel has also shrunk in recent years.

During the 2008 fiscal year, it housed the equivalent of 119 full-time positions. FEC officials confirmed that figure is now 110, with 101 of those jobs occupied.

This largely mirrors a years-long trend of staffing declines and stagnant congressional funding that only in the past year began ticking upward again.

Jason Torchinsky, a partner at the Holtzman Vogel Josefiak PLLC law firm who regularly represents conservative political clients before the FEC, singled Stevenson out for praise.

“Lisa Stevenson is doing a fine job of running [the Office of the General Counsel], moving matters along internally and dealing with the litigation and regulatory matters before the agency,” he said.

Other lawyers who regularly work with the FEC disagree.

One is Marc Elias, chairman of law firm Perkins Coie’s political law practice and general counsel for Hillary Clinton’s presidential campaign.

Elias, who’s represented numerous clients including the Democratic National Committee to the FEC, says that “whatever the ideological differences the commissioners have, the legal department would run much better with a leader.”

What’s to be done about the FEC’s general counsel saga?

At the moment, the various government bodies best positioned to exert external pressure on the FEC are in little hurry to do much.

President Barack Obama could immediately nominate new commissioners, who the U.S. Senate must confirm. After all, five of the FEC’s six commissioners continue to serve despite their terms having expired, with Ravel the only one currently with an active Senate mandate.

But Obama has not floated new FEC commissioners since mid-2013, when he nominated Ravel and Republican Lee Goodman, who served as agency chairman during 2014. The White House did not respond to the question about whether Obama will attempt to this year replace current FEC commissioners.

Congress could pass a bill, such as one introduced Thursday by Rep. Derek Kilmer, D-Wash., that scraps the FEC’s six-member commission — instituted after the Watergate scandal to defend against partisans dominating the agency — for a five-member body.

An odd number of commissioners — two Republicans, two Democrats and an independent — mirrors Washington state’s reasonably collegial congressional redistricting commission and would be less prone to ideological impasses, Kilmer argues.

“The FEC today makes Congress look comparatively functional,” Kilmer told the Center for Public Integrity. “We, as taxpayers, are paying for an agency in constant gridlock. We can do better.”

But Congress, writ large, isn’t much interested in campaign finance-related bills of late. Most languish in congressional committees and never even get a vote. Kilmer, who has two Republican co-sponsors for the bill, said he’s hopeful both parties will find merit in legislation that makes a government agency more efficient.

Meanwhile, two congressional bodies — the Senate Rules and Administration Committee and the Committee on House Administration — oversee federal election matters, and by virtue, the FEC.

But neither committee has conducted an FEC oversight hearing this year, where lawmakers could formally and publicly question the agency’s commissioners. None are scheduled.

For Senate Rules Committee Chairman Roy Blunt, R-Mo., the onus of appointing an FEC general counsel is on the agency’s six leaders.

“It would be preferable to have one in place,” Blunt spokesman Brian Hart said, “but the commissioners need to come to a consensus on a candidate.”

This story was co-published with TIME.

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