FEC Might Delay Vote on Restricting Cooperation with DOJ
By Jennifer Koons | July 25, 2013 10:30 pm

The Federal Election Commission met today but failed to address a held-over discussion of a controversial proposal to make it more difficult for the commission to cooperate with the Department of Justice.

The issue could be tabled until the Senate acts on two new commission nominees named last month by President Barack Obama. At least that is the wish of Chairwoman Ellen Weintraub, who wrote today to the House Administration Committee to say she was reluctant to schedule a vote until Ann Ravel and Lee Goodman joined the commission.

FEC Chairwoman Ellen L. Weintraub

“In my view, it would be highly inappropriate for the commission to take precipitous action on a matter of this importance without giving our new colleagues the opportunity to participate,” wrote Weintraub, who said she removed discussion of the topic from today’s open meeting agenda.

But waiting would have another benefit for Weintraub, namely the exclusion of the person responsible for proposing the changes in the first place — Vice Chairman Donald F. McGahn II.

Like other commissioners, McGahn is serving beyond the expiration of his six-year term, because until recently Obama had not made new nominations to the commission. If confirmed, Republican attorney Lee Goodman would replace McGahn. The FEC is currently operating with only five commissioners, three Republicans and two Democrats.

The former general counsel to the National Republican Congressional Committee and campaign finance and ethics lawyer for former House Majority Leader Tom DeLay (R-Texas) doesn’t plan to relinquish the issue without a fight.

In a 21-page memo released today, the GOP commissioner defended his proposed changes to the FEC’s enforcement manual, which would require all Justice Department information requests be accompanied by a subpoena and be approved by a commission vote.

In the memo, McGahn criticizes the general counsel’s office for operating “in secret” and “on an ad hoc basis,” suggesting the IRS scandal resulted from a similar process.

“One need look no further than recent revelations regarding the Internal Revenue Service to appreciate what can occur in the absence of such standards,” he wrote.

He chastens staff members who “refused to acknowledge” that “Congress has already made the policy choice: the commissioners make the decisions, not the staff.”

This comment was likely directed in part to Anthony Herman, who became the FEC’s general counsel in September 2011 from Covington & Burling LLP. Herman pushed to expand the relationship with the Justice Department, hiring Dan Petalas, a former Justice Department prosecutor, as chief of the FEC’s enforcement operations.

Herman last year tried to update the MOU to cement the relationship between the two agencies, but appears to have been thwarted by the Republican commissioners.

Instead, the three Republican commissioners, McGahn, Caroline Hunter and Matthew Petersen, proposed the new limitations on the FEC staff’s ability to share information with criminal prosecutors.

Under current procedures, the Justice Department can obtain that information informally by simply asking for it. It does not have to issue a formal subpoena.

Herman announced in June that would he leave the commission. His last day was supposed to be earlier this month. But he has indicated he might speak if and when the commission decides to take up the proposed restrictions on sharing information with Justice, according to Weintraub.

Meanwhile, Democratic and Republican lawmakers are weighing in along predictable party lines.

FEC Commissioner Donald McGahn

In a letter sent to Weintraub last week, Senate Rules and Administration Committee Chairman Charles Schumer (D-N.Y.), joined by fellow Democrats on the panel, said the proposed new policy “would hinder enforcement and would be inconsistent with practices across the federal government.”

Meanwhile, House Administration Committee Chairwoman Candice Miller (R-Mich.) and GOP members of the committee sent their own letter to Weintraub and McGahn, urging a change to the manual.

There is no clear timeline for when the Senate will act on the new nominees. Goodman and Ravel testified before the Senate Rules and Administration Committee on Wednesday.

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