Further Evidence of Dysfunction at the Federal Election Commission

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March 11, 2014; National Journal

Established in 1975, the Federal Election Commission (FEC) is, according to its web site, “an independent regulatory agency, [with duties] to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.” No more than three of the FEC’s six commissioners can be members of the same political party, and the vote of at least four commissioners is required to approve FEC actions. This design, intended to promote bipartisanship, has become a recipe for stalemate and inaction.

The FEC’s general counsel’s office, a nonpartisan office within the FEC, recently released a “First General Counsel’s Report” on Karl Rove’s Crossroads GPS, a 501(c)(4) “social welfare” nonprofit, studying whether its political activities require it to register with the FEC and be regulated as a political action committee. The report concluded that Crossroads GPS should, indeed, have registered with the FEC, an assertion that the nonprofit continues to disagree with, citing that it has an affiliated super PAC, American Crossroads, which engages in political activity separate from the social welfare mission of Crossroads GPS.

The intrigue is in Footnote 111 (really) of the GOP commissioners’ “Statement of Reasons” document, which is where the FEC’s GOP commissioners inserted a 76-page document that is apparently a previous version of the general counsel’s report. So, the “first” report may not have been the first report after all. We don’t know, because the 76-page footnote is completely redacted (censored), with only the word “redacted” printed on each page. The redactions were apparently done by the general counsel’s office itself, with the agreement of the Democratic FEC Commissioners. The Democratic FEC Commissioners issued their own “Statement of Reasons” document, without referencing the information redacted from their GOP colleagues’ document.

No one who has seen the original 76-page footnote is talking on the record about it, but there are theories that the document could be used by political entities as a precise guidebook on what activities will and will not pass regulatory muster with the FEC. This would be incredibly valuable to campaigns and organizations across the political spectrum as they raise money and spend it to influence elections.

Including the redacted version in the report is a signal of at least three things. First, the partisan divide at the FEC continues, if not actually intensifying. Second, there was apparently a previously drafted general counsel’s report on Crossroads GPS that was pulled prior to publication when a new FEC general counsel started work after the report was complete but before it was published. Third, there may be an FEC document that contains the “secret sauce” that can guide affected groups away from FEC sanctions while still achieving their missions.—Michael Wyland