Yesterday’s post noted several proposed changes to the Federal Election Commission’s Enforcement Manual that are likely to prove controversial.  Yet there are also proposals in that same document that merit serious consideration, if not outright support, from all on the Commission.  Here are just some suggestions of proposals that could win bi-partisan support.

  • Applying the statute of limitations to claims for equitable relief, such as disgorgement, as well as to monetary penalties.
  • Providing clarity on where penalty negotiations will begin by providing a chart like the one at section 6.5.6.4.
  • Providing greater clarity on the aggravating and mitigating factors the Commission will consider when deviating from the pre-set formulas.
  • Providing Commissioners with information on relevant pending and past matters—both those consistent with the staff recommendation and those that are inconsistent—when presenting a question for a vote.
  • Setting expectations for how long it will take staff to process cases at certain stages of the enforcing process.
  • Ending the use of admonishments.  A reasonable idea, but vulnerable to statutory and due process arguments and consequently, one whose time has probably passed.
  • Easing the granting of extensions of time in enforcement and untying the grant of an extension from a tolling of the statute of limitations.
  • Regularizing the use of contention language, correcting facts, and limiting admissions clauses in conciliation agreements.

This is far from an exhaustive list, and only serves to highlight that the agency should be able to find common ground on some of the proposed changes to current practices.  The search for compromise is frequently difficult, and is especially so at this point in the Commission’s history, when a string of hard and bitter fights have left bruises and a shortage of trust.  But the document in front of the Commission is an important one, and the opportunity to cement into place procedural protections that will guide the agency’s practices for years to come is worth the effort.

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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.”