Documents reveal Commissioners at war over defending lawsuit charging the agency is failing to enforce campaign finance law
Plaintiffs in case file Motion for Summary Judgment...
By Brad Friedman on 7/31/2014, 5:35am PT  

While Congressional Republicans are busy filing a lawsuit against President Obama, in a purported attempt to bring accountability for...failing to enforce the law...or something, Republican Commissioners on the Federal Elections Commission (FEC) are going to extraordinary lengths to avoid enforcing the law.

In the bargain, its GOP Commissioners are railing against their fellow Democratic Commissioners for attempting to bring accountability for actual violations of federal campaign finance law, turning the facts of the case on its head, and publicly attacking their colleagues as "strident" obstructionists, eschewing the rule of law.

Yes, it's another breathtakingly twisted chapter from the unending Partisan Wars of 2014, although a rather important one with potentially far reaching consequences for the nation, as those paying attention might notice --- though few seem to be...

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In April, not long after several good government groups filed a lawsuit in hopes of forcing the FEC to enforce federal campaign finance law, one of its six commissioners, a Democrat, took to the New York Times op-ed page in response to the little-noticed but potentially landmark case.

"The Federal Election Commission is failing to enforce the nation's campaign finance laws," Ann M. Ravel opened the piece with an alarm bell. "I'm in a position to know. I'm the vice chairwoman of the commission."

Ravel, a Democratic appointee to the Commission, explained how the federal agency's three Republican-appointed Commissioners (there are three nominated by Rs and three by Ds) are now blocking virtually all investigation into complaints of illegal campaign spending and electioneering by the largest and most powerful political outfits in the nation.

"The problem stems from three members who vote against pursuing investigations into potentially significant fund-raising and spending violations," Ravel complained. "In effect, cases are being swept under the rug by the very agency charged with investigating them."

She went on to cite the case The BRAD BLOG was first to report in February involving a challenge to Karl Rove's Crossroads GPS group. The self-declared 501(c)(4) "social welfare organization," as Ravel explained --- and as we had reported two months prior --- "spent in excess of $20 million, more than half of its budget, on federal campaign activity" in 2010.

Nonetheless, when the FEC's own attorneys found --- during a preliminary investigation of the administrative complaint filed by the non-partisan groups who charged that Rove's organization had violated federal law by not filing as a political committee --- the agency's Commissioners deadlocked in a 3-3 vote on whether to launch a full investigation, as recommended by the staff attorneys. A deadlock vote, which has become virtually de rigueur on such matters at the FEC since Obama took office, assures that any such complaint is stopped dead in its tracks and dismissed without further action or accountability.

Thus, as we reported in early February, the non-partisan organizations who filed the original administrative complaint in 2010 [PDF] have now filed a lawsuit [PDF] against the FEC. They hope that the judiciary will require the FEC to enforce the federal campaign finance disclosures laws that the U.S. Supreme Court, in its infamous 2010 Citizens United decision, cited as the public's protection against flagrant corruption.

But if there's no disclosure, there is no protection against that corruption. And if the FEC will not enforce federal disclosure laws, or even agree to a full legal investigation even when their own lawyers call for one, there will be no disclosure at all, and corruption wins the day --- as it has since Citizens United has been in effect.

The Republicans on the Commission seem quite pleased with that notion. But, now, documents issued by the GOP-appointed Commissioners after two Democratic appointees, including Ravel, refused to vote to defend the FEC's action in court, reveal they are willing to turn the truth upside down in order to continue a plainly partisan political effort to shield the interests of the most powerful Republican electioneers in the country --- beginning with GOP über-operative Karl Rove's Crossroads GPS.

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During its preliminary investigation into the administrative complaint filed by Public Citizen and, the FEC's own Office of General Counsel (OGC) found [PDF] that Rove's group likely violated the law by not filing as a political committee with the agency.

[Full disclosure: Protect Our Elections is a campaign created by, an organization co-founded by The BRAD BLOG, though we are not personally involved with either the initial 2010 administrative complaint or the lawsuit currently being heard in federal district court.]

Despite the OGC's recommendation for a full investigation, the Commissioners voted along party lines to their 3-3 deadlock on the matter at the beginning of this year, effectively dismissing the administrative complaint, allowing Crossroads to keep their donors secret and the "dark money" pouring into their coffers for use in electioneering.

As the plaintiffs describe in their complaint [PDF] filed in the D.C. District Court, the OGC "found that [Crossroads GPS] had spent at least $20.8 million on federal campaign activity...between June and December 2010 --- more than half of the $39.1 million Crossroads GPS reported to the IRS that it spent in 2010."

Those "dark money" expenditures of "approximately 53 percent of...Crossroads GPS's spending in 2010," in and of themselves, were "sufficient to establish that its major purpose in 2010 was the nomination or election of federal candidates," according to the FEC's legal office, which urged further investigation by the Commission to determine the full scope of the group's 2010 campaign spending.

The three FEC Commissioners appointed by Democrats (two are Democrats, one is an independent), issued a "Statement of Reasons" [PDF] in January of this year explaining why they voted to investigate, citing the "clear-cut case" presented by the OGC for a full investigation into Crossroads GPS' "vast" political expenditures.

The three Republican Commissioners, however, voted against the Democrats, as well as their own legal counsel at the OGC, denying any further investigative action, ending the FEC's administrative process and, as we reported in February, effectively offering "Rove carte blanche to conceal donor identities with respect to monies spent in subsequent elections, such as the 2012 election cycle in which Crossroads GPS 'spent at least $71 million on federal campaign activity,'" according to the then-newly filed federal complaint.

"Crossroads is the behemoth of electioneering non-profit groups, and the general counsel and the staff completely agreed with us," Public Citizen's Craig Holman, one of the plaintiffs in the lawsuit, explained to us during an interview in January. "It's a hand-down call. This is a political committee. Their major purpose is electing Republicans to Congress...or trying to defeat the election of Obama at the time as well."

But the Republican Commissioners disagreed (you'll have to read our full story from February to try and make sense of their tortured reasoning) and so the suit to force the FEC to enforce the law, a judicial review specifically allowed by the Federal Elections Campaign Act (FECA) of 1971, was then filed.

"In voting not to investigate," Ravel wrote in the NY Times in April, "the commission's anti-enforcement bloc disregarded clear facts and law. Instead, they took at face value self-serving statements from Crossroads GPS, like the group's Articles of Incorporation, which state that it was created to 'further the common good and general welfare.'"

"I believe that our failure to investigate is indefensible," she said. "Unless Public Citizen and prevail in their lawsuit, there will be no inquiry, and Crossroads GPS will continue to spend millions of anonymous dollars to influence our elections."

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In April, as she was clearly pulling for the success of the Public Citizen lawsuit against her own agency, Vice Chair Ravel and fellow Democratic Commissioner Ellen L. Weintraub voted against defending the FEC in court (actually, they voted to "abstain" for reasons of comity, after initially voting against.) In a response no less bizarre than their official, twisted reasoning for letting Rove's group off the hook in the first place, the Republican Commissioners then released a blistering 4-page statement [PDF] blasting the two Democrats for what they described as having "sought to thwart the defense of the suit by abstaining from the vote."

Although the vote to defend the FEC in court was adopted with 4 of the Commission's 6 votes, the Republicans nonetheless characterized Ravel's vote as "obstructionism," charging that she made "strident contentions," that her vote "subverts an essential agency obligation" and that she and Weintraub were "eschewing [the] principles" of judicial review in the bargain.

It's like black is white and up is down.

The GOP Commissioners excoriated the Dems for breaking with what they described as "nearly forty years" of "routine, pro forma" votes to defend "cases challenging dismissals of administrative complaints." And, in an even more Orwellian twist, they cited, in support of their argument, the recommendation by the FEC's own Office of General Counsel to "authorize OGC to defend the Commission in the lawsuit."

It was as if the similar recommendation from the OGC --- the one to investigate the entire Crossroads GPS matter in the first place --- wasn't entirely ignored previously by the very same Republican Commissioners now citing the OGC in their effort to publicly slam their Democratic colleagues with an inflammatory public rebuke.

"Commissioner Ravel derided the federal courts in astonishing fashion, accusing them of acting as a 'rubber-stamp approval of inaction,'" GOP Commissioners Lee E. Goodman, Caroline C. Hunter and Matthew S. Petersen feigned outrage in response to Ravel's charge that the D.C. District Court had, for too long, given inappropriate deference to the results of deadlocked FEC votes, as if they were affirmative determinations by the agency rather than a simple failure to achieve consensus one way or another.

In the bizarre statement, they went on describe the Ravel and Weintraub votes to abstain as an "effort to undermine the defense" of the lawsuit, "subvert[ing] an essential agency obligation" by attempting to render judicial review meaningless.

Rather than respond directly to the attack, last month Ravel and Weintraub issued their own statement [PDF] on what they described as the federal court's "deadlock deference."

"We are concerned about the potential that courts will continue to grant deference to the perspectives of only half of the members of the Commission when the Commission has a split vote," they wrote, describing the D.C. District Court's historical tendency to defer to the expertise of federal agencies which, they argue, should not apply in deadlocked FEC cases.

"A 3-3 split vote is a disagreement, not a decision," they explained. "Granting deference to a non-majority group of a deadlocked Commission frustrates the four-vote majority rule Congress enacted to foster bipartisanship," Ravel and Weintraub wrote, explaining Ravel's earlier reference to the court's "rubber-stamp approval of inaction," which the GOP Commissioners pretended to be so outraged about in their April statement...

The D.C. Circuit's "cursory treatment" of the legal basis for deference calls for reexamination. Generally, agency decisions are granted deference because agencies possess certain institutional advantages in carrying out the mission entrusted to them by Congress. ... However, when the Commission votes 3-3, there are conflicting sources of expertise and policymaking judgement. There are two groups of Commissioners --- one in favor of taking action, another opposed. And there is the expert recommendation of the Commission's professional staff. As a whole, a deadlocked vote is capable of sending only two collective messages: (1) that the "experts" disagree; and (2) that the agency vested with the authority to "reconcile competing political interests" in this area of the law has failed to do so.

Regrettably, deadlocks at the Commission have become increasingly common. Though we value consensus --- and are always striving to find new ways to achieve it --- there are likely to be more 3-3 votes in the future, including on matters with broad legal and policy implications. Thus, the issue of what weight to give to the opinions of a controlling group of Commissioners will continue to arise, and it could have a significant impact on the enforcement of campaign finance law. Courts should rethink "deadlock deference," in order to ensure that complainants get a fair, independent review and that partisan positions or rigid ideologies are not substituted for reasoned judgement.

Late on Wednesday, we sought comment from Ravel as to what message she hoped to send with her vote to abstain from defending the FEC in the Public Citizen case. She has yet to respond, though we will try to update this story when and if she does.

In April, Ravel told the Center for Public Integrity, which is representing Public Citizen and Protection Our Elections in the court case, that whether her abstention drew "furor or not, I'm here to do what's best for the public and to fulfill the purposes of the FEC...It's about disclosure."

Plaintiff Craig Holman, the Government Affairs Lobbyist for Public Citizen's Congress Watch, told us that he believes Ravel's vote was out of frustration, an attempt to ensure the court sees the FEC's non-decision, or, really, GOP obstructionism, for what it is.

"Ann Ravel is frustrated by the paralyzing deadlocks of the Commission, and wants such deadlocks to be recognized for what they are: no decision," he told The BRAD BLOG via email on Wednesday. "As a non-decision, there is little justification to go to court and defend one side versus the other. Ravel appropriately followed the Commission's non-decision with an abstention on defending it in court."

Late on Wednesday, the plaintiffs filed their Motion for Summary Judgment [PDF] with the D.C. District Court, charging that "the failure of the Federal Election Commission (FEC) to find 'reason to believe' that Crossroads GPS violated" the Federal Election Campaign Act and the "FEC's subsequent dismissal of Plaintiffs' administrative complaint was arbitrary, capricious, an abuse of discretion and otherwise contrary to law".

The FEC's response will, presumably, be filed by the same Office of General Counsel whose recommendation to investigate campaign finance violations by Rove's Crossroads GPS was dismissed by the Republican Commissioners in the first place.

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