Roll Call has a very informative article today on the tension at the Federal Election Commission between the goals of transparency and caution in terms of what type of information is released and language is used in press releases when a case is concluded. The full story is here (subscription required): FEC Split Over Its Openness
A few brief excerpts:
The Federal Election Commission’s leaders are struggling with… how open and expansive the agency should be in publicizing its caseload…
… in recent interviews with members of the bipartisan, six-person overseer of the nation’s election system, deep divisions became obvious regarding the FEC’s role – if any – in trumpeting high-dollar fines and other apparent triumphs through the commission’s press office.
Cynthia Bauerly… said last week that "my personal preference is that we put as much information as possible into the press releases."
"We’re a disclosure agency," she said. "I think it’s an important part of our job to make sure that committees are reporting everything they need to be reporting, and therefore, it behooves us in turn to put information about our closed matter into the public record in the most usable form.
…But not everyone at the agency shares Bauerly’s approach. Don McGahn… suggested that the agency should err on the side of caution when disseminating facts even on settled cases, releasing only the bare minimum – lest the commission perhaps prejudice the parties involved or appear to be taking sides in often-sensitive political matters.
"The agency is an independent decision-maker that is quasi-judicial," McGahn said. "You don’t see judges holding press conferences after they sentence, and neither should the FEC."
The article goes on to note that McGahn’s perspective seems to be carrying the day, and "language used in the recent [press] releases comes across as bland and utilitarian."
Brian Svoboda, a partner at the law firm Perkins Coie and an expert in campaign finance, had a very interesting response on why the current policy of "bland and utilitarian" press releases may be the proper approach. Originally sent to the Election Law listserve operated by Rick Hasen, I’ve reproduced Brian’s comments here with permission:
The Roll Call article on FEC press releases was interesting. As a Democratic practitioner, I say this with some fervor: the issue is not reducible to a dispute between Democrats and Republicans.
Two things have happened with the agency in the past several years:
First, the FEC became more eager to settle matters before completing a substantive investigation. There were obvious reasons for this. It saves the agency investigative and litigation costs. It allows the agency to boast of success in collecting penalties, which is undeniably a metric used to assess its performance. And it allows the agency to short-circuit what might otherwise be serious challenges to aggressive interpretations and dubious rules. Jack Davis swam against this current. But, as Kathleen Sullivan’s excellent amicus brief in the Davis case showed, many self-financing candidates got swept up in it. So, too, did any number of groups that labored to avoid express advocacy and federally regulated solicitations in the 2004 cycle, against changeable and retroactively-applied standards.
Second, the FEC became more eager to publicize its settlements with language crafted to get maximum attention. I can understand that. In no small part because of criticism from those who claim to support its mission, the agency labors unfairly under the caricature of the 98-pound weakling in the Charles Atlas ads. It would just as soon avoid that. And other agencies publicize their "successes."
But there’s an obvious tension between these two trends. When one party agrees to pay money to avoid the costs, burdens and uncertainties of litigation, that’s not the same as admitting a violation. That’s especially true when the full Commission has made no finding other than a preliminary finding of reason to believe. And sometimes the conciliation agreement says that flat out. It’s hard to say they caught the bad guys, when nobody actually decided for sure they were bad. But that’s the purpose of an elaborate press release, isn’t it, to create just this impression?
I’ll lay my own bias on the table. I think the FEC is more akin institutionally to an impartial judge than a zealous prosecutor. That’s not a knock on the FEC; it’s just the way Congress made it. In 2000, I found it odd and untoward to see a spokesman come onto the steps of the Florida Supreme Court and read a press release purporting to say what it had done. I would prefer that courts speak solely through reported opinions. And I think the FEC should err, if anywhere, in that direction.
There are also practical consequences that need to be considered. A respondent – especially someone politically prominent – might be less likely to settle at the preliminary stage, knowing that a charged press release lurks just around the corner, no matter what kind of settlement is negotiated. Why worry as much about the language in the conciliation agreement, when it’s the press release that everyone back home will read? The more the FEC strays from a Jack Webb, "just the facts" approach in its press releases, the more likely it is that the content of those releases will become a material term of settlement. And nobody – inside or outside the agency – now knows how to handle that.
-[Brian].
A very welcome and insightful commentary, particularly for those of us who cringe at the thought of the Federal Election Commission acting not just as judge, jury, and prosecutor for Americans charged with improperly engaging in political speech, but also as publicist for speech-chilling punishments meted out by the Commission.
