Blocking complaints

Republican FEC commissioner admittedly blocking complaints against Republicans

By Paul S. Ryan

In my decade-plus as an attorney at the Campaign Legal Center (CLC), a nonpartisan legal organization, we’ve filed dozens of administrative complaints with the Federal Election Commission (FEC) against those we believed to be violating federal campaign finance laws.  Even in the best of times, we’ve waited in excess of 2 years for the FEC to resolve our complaints.  But things at the FEC have gotten much, much worse in recent years.

Since 2011, we’ve filed 19 complaints with the FEC and only four of them have been resolved.  Six complaints that we filed in 2011-12 remain pending before the Commission.  Until May 21, we had no idea what has been causing delay.  At the Commission’s May 21 public meeting, however, we learned the likely source of delay when Republican FEC Commissioner Lee Goodman acknowledged that he’s been exercising his “discretion” to hold up complaints against Republican and conservative groups.

This astonishing revelation was made in a discussion of a proposal by Commissioner Ellen Weintraub to implement a policy requiring Commission action on complaints within a specified timeline—six months, in most instances.  Commissioner Goodman criticized the proposed policy because it “limits the discretion of Commissioners,” stating that “discretion is important and has a partisan impact.”  The number of complaints filed against Republican and conservative groups, he argued, outweighs the number of complaints filed against Democratic and liberal groups, so moving forward on all complaints on a specified timeline would have a “disparate” impact on Republicans.  Commissioner Weintraub responded: “I’m speechless.”

Commissioner Goodman didn’t stop there.  He also took a not-so-veiled swipe at organizations such as the CLC, repeatedly criticizing a “class of complainants” that uses the “agency’s processes more aggressively than others” and making clear that he “come[s] at this more for the rights of respondents”—i.e., the individuals/groups CLC files complaints against.

In the case of campaign finance law enforcement actions, FEC Commissioners are supposed to play a judge-like role.  Groups like the CLC file complaints.  The individuals/groups we file complaints against file legal briefs with the Commission defending themselves.  And the Commissioners decide whether to proceed with an investigation and enforcement action.

Commissioner Goodman’s remarks are akin to a judge saying “I don’t like people who bring lawsuits, especially lawsuits against my party, so I’m just not going to hear those cases.”  So much for nonpartisan justice!

Commission Chair Ann Ravel disagreed sharply with Commissioner Goodman, stating: “We have an obligation to the public . . . and also to the complainants . . . [who] have a right to have their complaints determined in a timely fashion.”  Additionally, respondents clearly have an interest in the timely resolution of complaints against them.

Setting aside Commissioner Goodman’s perceptions, the CLC is a nonpartisan organization.  Our founder and President is Trevor Potter, a Republican former chairman of the FEC and a lawyer for three Republican presidential candidates.  We file complaints against Democrats and Republicans alike.  In mid-April, for example, we filed a complaint against the President-Obama-Supporting super PAC Black Men Vote and its primary funder, hip hop artist Pras Michel.  In late March, we filed complaints against Democrat Martin O’Malley and Republicans Jeb Bush, Rick Santorum and Scott Walker alleging violations of federal law “testing the waters” requirements for prospective candidates.  Why not Hillary Clinton, you might be thinking.  Because she was reportedly self-financing her exploratory activities and not violating the laws we believe others have violated.  But don’t worry—we have a complaint against Ms. Clinton in the pipeline.

Compounding the outrageousness of Commissioner Goodman’s words and actions is the fact that the Federal Election Campaign Act requires the Commission to act on complaints within 120 days of the complaint being filed.  Not only is Commissioner Goodman’s exercise of “discretion” to block complaints against Republicans for purely partisan purposes bad public policy, it is also contrary to law.

The Campaign Legal Center has been exceedingly patient with the dysfunctional FEC in recent years.  But just when we think the Commission can’t get worse, it does.  Our patience has been exhausted.  The Commissioners have left us with no choice other than to sue for its failure to act on our complaints within the 120-day period specified in the statute.  Given Commissioner Goodman’s statements, the FEC’s inaction is clearly arbitrary, capricious and contrary to law.  To borrow one of Supreme Court Chief Justice John Robert’s favorite phrases, enough is enough.