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.