The Federal Election Commission made public two versions of its Enforcement Manual today, one based on current practices for handling the agency’s enforcement docket, and one proposing a dramatic shift in how cases could be handled in the future.  The choice between the two versions may be up for discussion at the agency’s next open meeting on June 27.  At least two themes run through the suggested changes: an increased control by the six Commissioners over the day-to-day processing of enforcement cases; and the cessation of any cooperation between the FEC and other government agencies, including the Justice Department, absent an affirmative vote of four of the six Commissioners.  While the documents are long, and the important changes many, here are some highlights.

Enforcement 

The changes, if adopted, would:

  • Curtail the ability of staff lawyers to consider facts outside the four corners of a complaint when recommending whether the Commission should begin an investigation;
  • Limit the ability of staff lawyers to act on potential violations of the law that are apparent from the facts in the complaint, but were not specifically identified by the person filing the complaint;
  • Require the affirmatively vote of four Commissioners to issue each subpoena, take any deposition or respond to a motion to quash a subpoena;
  • Require the affirmative vote of four Commissioners before an agency lawyer can ask a respondent to toll the statute of limitation in return for an extension or to enter into pre-probable cause conciliation;
  • Require the affirmative vote of four Commissioners before a staff lawyer can send a follow-up letter to seek clarification about facts or law after a respondent has explained why the Commission should not begin an investigation; and
  • End the use of press reports as the sole factual basis for a complaint.

Other Government Agencies

The changes, if adopted, would:

  • Bar FEC staff from providing the Justice Department with any non-public information without the affirmative vote of four Commissioner, including information on the status of an investigation or the substance of what the agency learns during an investigation;
  • Require staff to log and identify for the Commissioners on a weekly and quarterly basis all requests by a law enforcement agency for publicly available information on any person, including which individuals or groups were the subject of the inquiry;
  • Deny the Justice Department access to sua sponte submissions;
  • Prevent the General Counsel’s office from holding an investigation in abeyance at the request of the Justice Department without an affirmative vote of four Commissioners; and
  • Require the affirmative vote of four Commissioners before an FEC staff person may serve as a witness for the government in another agency’s case, such as providing expert witness testimony in a criminal prosecution.

These changes—were they to be adopted—would institutionalize Commissioner involvement in the day-to-day details of the enforcement functions of the agency.  This path, which leads
away from the Commissioners focusing on setting policy and serving as the ultimate decision-makers on matters and towards them supervising the day-to-day decisions of staff lawyers may be enticing in an agency that at times seems so trapped in acrimonious gridlock that it is impossible to constructively shape the law, but it is also a path that may in the long run lead to an agency even less relevant than before.

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Photo of Robert Lenhard Robert Lenhard

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice…

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice relating to federal and state campaign finance, lobbying, pay-to-play, and government ethics laws. As an advocate, counselor, and regulator, Mr. Lenhard brings a depth of experience on matters that involve legal as well as political risk.

Bob led Covington’s representation of the Biden for President campaign, the Super PAC supporting President Obama’s re-election, as well as several prominent professional sports leagues, pharmaceutical manufacturers, technology companies, advocacy groups, and trade associations.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process. Mr. Lenhard also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.

Mr. Lenhard is frequently quoted in the press, has lectured at major law schools, and Before his service to the FEC, Mr. Lenhard provided legal advice to labor organizations active in the political process at the federal, state, and local levels. Mr. Lenhard also was involved in litigation in the Florida trial and appellate courts over the counting of absentee ballots in Seminole County, Florida in 2000.

Robert Lenhard is a member of the firm’s Election and Political Law Practice Group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules. According to Chambers, sources report: “He is strategic and always sees the big picture. He is a great person who provides excellent non-legal counsel as well.”