This file contains archived live captions of the open meeting of the Federal Election Commission held on August 11, 2015.  This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.

>> Today's open meeting of the Federal Election Commission is scheduled to begin at 10:00 a.m. but the actual start could be delayed by several minutes or more.
The agenda for today's meeting can be found online at http://www.fec.gov/agenda/ agendas/shtml. 
>> Good morning.
Welcome everybody.
Open meeting, Federal Election Commission, Tuesday, August 11th, will come to order.
We have some late submitted documents this morning.
Mr. Vice Chairman.
>> Thank you.
I move to waive the rules on the timely submissions of agenda documents so that the Commission may consider the late commission of agenda document 15-38-B, 15-38-C, 15-44-A, and agenda document number 15-27-B.
>> Thank you, Mr. Vice Chairman.
The vice Chairman has so moved.
Are there any questions?
If not, all of those in favor please indicate by saying aye?
[Chorus of Ayes]
>> Madam Secretary that motion passes 5-0.
Just to note, Commissioner Weintraub is not available today.
But she may be ultimately writing in today with her votes.
>> Thank you.
>> Thank you.
The next item -- first item on the agenda, 15-43-A.
Correction and approval of the minutes.
Mr. Vice Chairman.
>> I move approval of the minutes for the meeting of July 16th, 2015, as set forth in agenda document 15-43-A.
>> Thank you.
Any comments or questions on the minutes?
All of those in favor indicate by saying aye.
[Chorus of Ayes]
>> Okay.
That matter passes unanimously.
The first item on the agenda, item -- second item, item II, the document 15-38-A, draft Advisory Opinion 2015-3, Democracy Rules, incorporated.
We have Tony Buckley and Amy Rothstein from the Office of General Counsel to request the matter.
>> I believe the requester is also on thehe phone.
>> Yes, good morning.
>> Good morning, Mr. Cashman, welcome.
>> Thank you. 
>> Thank you, good morning.
Agenda document 15-38-A, draft Advisory Opinion.
Agenda documents 15-38-B and 15-38-C, draft Advisory Opinions which incorporate supplemental -- after the July 11th meeting.
Draft B concludes, explained in the supplemental material, remove the direction and control of Democracy Rules over the choice of the recipient of a contribution.
Accordingly draft B concludes that the proposed activity of Democracy Rules is per missible under the acting commission regulations.
Draft C, procedures explained in the supplemental material, Democracy Rules exercise and direction and control over the choice of the recipient of a contributioncontribution.
Draft C -- the Commission received a comment on draft B and C.
If Commission approves a draft, we request authorization to make any technical and conforming changes.
Thank you and I would be happy to answer any questions that you have.
>> Are there any questions or comments?
Commissioner Goodman.
>> Mr. Cashman.
>> Yes, sir.
>> This is Commissioner Goodman again, how are you?
>> Good.
How are you, Mr. Goodman?
>> I presume you have seen there is a draft B and a draft C on the public record.
>> Yes.
I did notice that.
>> And draft B is a yes draft and draft C is a no draft.
>> Okay.
>> It appears that speaking for myself, I intend to support draft B, which is a yes draft.
Because you have incorporated sufficient voluntary choice of those who come to you to use and employ your service.
>> Yes, sir.
>> And inherent in all of the platforms that recommend the candidates to citizens who use that service is some either subjective or object ive vetting and recommendation process of the platform.
It appears that the primary objection in draft C, which may have support of some Commissioners, is that you do not offer to transmit a contribution to any and all federal candidates upon request of those who use your service.
That you offer a vetting service, a recommendation service, a service that allows people to associate on -- on a technological and virtual platform, but at the end of the day, draft C takes issue with the fact that you will transmit contributions solely to the candidates recommended through your presentation cycle process.
That does not concern me.
I'll let other Commissioners speak for themselves on that issue, but I wanted to delineate for you how I see the fundamental distinctions between draft B and draft C and that you -- if you're fishing, you may consider offering to transmit contributions to all candidates upon request of those who use your service if you're fishing for more votes.
>> Yeah, that's a good suggestion.
You know, very possible to have that function incorporated into Democracy Rules.
>> You may want to heed the fact that there are two alternative drafts a the the table today.
And I'm sure that the Chair and the Commission would afford you more time to work on your submission again if you are trying to modify your request to get more votes.
But I speak only for myself.
I'm prepared to vote for draft B today if you prefer to go to a vote today.
Thank you.
>> You know, given a choice, I would prefer to strive to win the votes of all six Commissioners, and if providing this type of a service, you know, to -- to receive and contributions to all legislators, that can be done, although obviously to do our process, an opt-in process, voluntary process, and, you know, if someone does not wish to -- there are many means for people to donate to legislators of their choice, but I would be very happy to make whatever adjustments are needed to comply with the rules and to satisfy all of the concerns of the Commission.
>> Mr. Cashman, we are required today to only deal with the facts and the information that you have provided to us at this time.
I'm going to ask the Office of General Counsel before you get a drink of water, what procedure you would recommend if Mr. Cashman wishes to alter his request.
>> That's fine with me.
>> There are several ways we could go.
He could submit additional supplemental material.
You could withdraw the present request and submit a new request that compiles all of the information as it stands, and start anew.
Those are probably the two ways that we could go from here.
>> A question?
>> Mr. Buckley, just to be clear, Mr. Cashman.
I take it that he could just ask to defer to grant more time on his request until the next meeting and supplement with a submissions that addresses this issue about the ability or the provision of a service that would transmit to all federal candidates upon request of his members and users.
>> If the Commission chooses to go that way -- 
>> I'm just saying that would be an option available to him if he is trying to satisfy six Commissioners instead of say, three Commissioners.
>> As long as the commission is comfortable proceeding that way, yes, he can.
>> Let me ask you, Mr. Cashman.
You heard there are two alternatives.
Obviously this is a Commission decision.
Of the two what would your desire be?
>> You know, I understand how difficult it is to win four votes for an action.
So, I think that depending on when the next meeting is, I think I can accommodate this request by the time of the next meeting.
So I think maybe the best thing to do is to, if possible, to delay a vote until I comply with this latest request.
>> Okay.
And to provide an extension of time for the response.
>> Please, yes, ma'am.
>> What is the will of the Commission?
>> Madam Chair, each Commissioner has the right to speak or not speak on this.
We have had someone who has worked very hard with the Office of General Counsel and Commission.
I think it might be helpful for Mr. Cashman to get some feedback, if he were to offer that service, if that would win a fourth vote of approval.
I'm not trying to put each Commissioner on the spot, it is just -- when we have a late requester like this who is trying so hard to adapt his innovation and his technology to our rules, I -- I think it would behoove at least make Mr. Buckley to work with Commissioners' offices in channelling some direction to Mr. Cashman who perhaps we could do it here.
>> I would appreciate that very much. 
>> You know, I -- I have a little -- and I look to general counsel's office on this.
I have a little concern about the Commissioners' offices working with particular requesters to fashion a request in a way that would meet either votes or legal requirements.
Mr. Adav.
>> I would share that concern.
I would think if there are views that Commissioners would like to express to the requester, this would be probably be the best format to do that so that we're not put in the position of relaying them.
them.
>> And for myself, I would say, Mr. Cashman, I personally would be in favor of draft C, and I think that if you read -- you apparently have not had an opportunity to read draft C, but if you read draft C and the concerns that were expressed in draft C that should give you sufficient information to be able to fashion a proposal that would not appear to provide a benefit to candidates.
So, you know, that's really my concern.
Any other comments?
Commissioner Walther.
>> The -- I think there may have been a misunderstanding Mr. Cashman at the last meeting.
It would give you the impression and probably fairly so that the colloquy that took place between you and Mr. Goodman might have represented more people's views than do so that you in order to try and make a deal, you know, make some modifications and we have -- I have never been part of that and typically we're not part of negotiating an AO.
I'm a little concerned with what happened because now you're kind of put on the spot, if I do that and a couple of more Commissioners and try to get a couple more votes.
That isn't the way the process usually works.
We get a draft and we get a thought-out opinion and somebody can always withdraw that and you can do that now if you would like.
But I think in a case like this, I'm not prepared to negotiate anything on an Advisory Opinion at a meeting like this.
If you want propose something different I'm more than willing to look at it.
At this point, I'm leaning towards draft C, and, you know, usually the way it was set up was that we would -- for years, the Advisory Opinion would come to us for a decision and the council would not be involved in the actual hearing.
The reason was is to -- there were times when we knew that counsel knew an answer to something that was really more of a factual situation, and we struggled with ways to try and get the information out.
And we decided that we would adopt a policy to allow counsel to appear and answer questions.
But at the last hearing, I think it went beyond that and it became more of a negotiating session as it is right now.
>> You know, Mr. Buckley has been helpful and Ms. Rothstein also, and when we discussed it at the last meeting, it became apparent to me there was a flaw in the system, in the -- and that's why we institute a function by which after the whole process is over, if a user does not abide by that, then he can withdraw any funds that he contributed to that particular process, that cycle.
Not so much, you know, one thing to secure more votes on the Commission.
It was more that and also the fact that it made a lot of sense that someone may like one of our trustee candidates, recipient, and if that vote does not go his way, then he is sort of forced to -- 
specifically -- even though it is an opt-in process.
So, by having this function at the end of the cycle, it corrects that problem so with a lot of things that Tony and Amy have discussed, it is -- more transparent and hopefully more in conformity with the rules.
So, I don't -- my understand --
you're not supposed to be designing DR, and I don't ask for solutions.
It would just be nice to know the concern, such as, you know, we have a concern that you're vetting -- you're vetting the recipients.
We don't like that.
You might want to consider a processby by which you do not vet at all.
That is a helpful suggestion, and a concern, I would love to hear of anymore that might be out there.
>> Madam Chair.
>> Commissioner Goodman.
>> Mr. Cashman, I don't -- 
either draft, that Democracy Rules vets candidates and matches citizens interests and -- with certain candidates that may reflect that.
That vetting process has been approved by the Commission in numerous Advisory Opinions.
Had a matching survey, where a user took -- answered several questions asked by skimmerhat.
Skimmerhat took the survey into its offices and helped match you vetted candidates that might match your interests.
Crowdpac today, which is online.
You can go online and using any number of criteria that are unique to you, you can identify issues.
The other day I did.
And I just clicked on -- I put in no philosophical filters or geographic filters or political party filters.
I just clicked on one issue of interest to me.
Student loans.
And through its algorithm, which we all know is a composite of subjective and objective programming factors, a Congressman in New Jersey popped up as the number one recommended person for me to go.
The algorithm vetted the Congressman that might be of interest on the issue.
I -- a vetting and recommendation process by Democracy Rules, the way that -- the problem I read on page 7 of draft C is that thereafter the transmittal service that Democracy Rules offers will transmit contributions solely to those that universe of recommended candidates that was developed through your vetting process.
And does not offer to transmit contributions upon requests by members to any federal candidate.
That was the primary distinction highlighted in draft C.
Vetting process I think is inherent in all of the services that the Commission has approved.
>> Right.
>> Okay.
There is a request on the table to postpone the hearing on this matter until the September meeting.
Is -- do we want to take a vote?
Discussion without objection.
>> I think that's fine.
>> Is there any objection?
There being no objection to that, I'm asking OGC to work with Mr. Cashman to get the appropriate extensions and the like.
>> We will do that.
>> Thank you very much.
>> As a matter of policy, I would like to make a record, if there are communications between the Office of General Counsel and the requester that they be made in writing and all Commissioners get a copy.
>> Okay.
We generally -- request on the phone and in writing.
Commissioner are you suggesting that we just for this request given that it is posture that we keep Commissioners advised of those communications?
>> Well, I think generally we and the public who get a chance to comment need to have disclosure has to what communications are taking place with the requester.
And I think that if it is in writing, it is better than if it is not.
>> When we reach -- I'm sorry.
>> You know, I would say that perhaps with respect to this matter because of, you know, the communications that maybe we could at least now without having a further discussion about other matters as well that we could ask that if you do have communications with Mr. Cashman that you advise us so that we understand what kind of questions are at play.
>> We certainly will.
And also as we did after the last meeting, if it gets to the point where there is something formal that needs to be memorialized, not only do we do that in writing but it becomes part of the public record.
>> I think the communications that take place before we have the hearing are the most important for the Commissioners to see what the back and forth was.
If there is a back and forth in writing, that we get a chance to read it and discuss it with other Commissioners.
It helps the process.
>> Commissioner, would you want to be included in our communications, like -- 
>> Thank you, Mr. Cashman.
>> This isn't a negotiating process generally.
Any contact should be directly with the Office of General Counsel.
>> I would like to be clear that -- not given any type of direction or instruction, you know.
When I thought about this -- 
buyers remorse -- that was not suggested to me and I did appraise Tony and Amy what I intended to do.
The most common phrase is we can't answer that question on the telephone to me.
I just want to make it clear that, you know, it is all coming from me.
>> Thank you, Mr. Cashman.
This matter will be heard on --
in the meeting in September, and Adav don't just say we can't answer the questions to us every time then.
No.
We want to see those communications.
Thank you. 
The next item on the agenda is Item III, it's -- it's draft Advisory Opinion 2015-05, Shaber.
We have Esther Gyory and Amy Rothstein to discuss the matter.
Welcome.
>> I also believe that the requester's counsel in this matter is also on the phone available.
>> Good morning, Madam Chair and Commissioners.
Michelle Lauer representing Alexina Shaber, the trustee in this matter.
>> Good morning, welcome.
>> Before you is agenda document 15-44-A, a draft Advisory Opinion in response to an Advisory Opinion request from Ms. Alexina Shaber.
The requester, Ms. Shaber, is the trustee of a trust established by Joseph Shaber, who is deceased.
Trust directs the -- 
Libertarian National Committee, a specific gift and percentage of the trust estate.
Currently approximately $191,600, of the total bequest remains to be distributed to the committee.
Requester asks whether she may engage an independent third party escrow agent -- the escrow agent would disburse and annually the maximum amount permissible under the act.
Concludes that the proposed activity is per missible because the committee will have no -- we did not receive any comments on the request or the draft.
If the Commission votes to approve the draft, we ask for the authority to make any necessary technical and conforming changes.
Thank you.
I would be happy to address any questions that you have.
>> Thank you very much.
Questions, comments?
Hearing none, is there a motion?
Mr. Vice Chairman.
>> I move approval in our consideration of draft Advisory Opinion 2015-05, that we approve draft A, which is set forth in agenda document, and authorize the Office of General Counsel to make any technical and conforming edits that may be necessary.
>> Do you have that motion?
>> Yes, I do.
>> Are there questions or comments?
Hearing none, all of those in favor please indicate by saying aye?
[Chorus of Ayes] 
>> Did you -- 
>> I'm sorry.
So, all of those saying no, voting no -- 
>> No.
>> Okay.
Madam Secretary, the matter passes 4-1, with Commissioner Goodman, Hunter, Vice Chair Peterson and Chair Ravel voting yes and Commissioner Walther voting no.
Thank you very much.
>> With respect to the next two items which relate to information sharing and document sharing, there has been a request by Commissioners to postpone item 5, public disclosure on closed enforcement files to the September meeting.
And, so, without objection, that matter will be continued to September.
So, the next item is item number IV, memorandum from Commissioner Goodman entitled notice to respondents of information sharing by the Commission.
Is there any discussion of this matter?
Commissioner Goodman.
>> Yes, we have discussed this previously.
This proposal merely alerts respondents and people requested to participate in our legal enforcement process of the importance, responsibilities and legal consequences of providing the Commission information.
And it merely takes a policy that the Commission has previously approved and published in the federal register and places it front and center to potentially lay respondents so that they're aware of the legal implications of their participation in our process.
So, without belaboring it any further, I move that the Commission approve agenda document 15-26-A.
Notice to respondents of information sharing by the Commission with the following edits to the language to be included in an initial letter to respondents.
First sentence will be moved to a footnote at the end of the second sentence and the phrase can and does in the second sentence will be changed to the word may.
Accordingly, the following language shall be included in all letters providing initial notice of a complaint or internally generated referral or providing initial notice that Commission has made a finding.
Please be advised that although the Commission cannot disclose information regarding an investigation to the public, it may share information on a confidential basis with other law enforcement agencies.
That sentence shall conclude with a footnote.
The following, Commission has the statue -- 52 U.S.C. -- and to report information regarding violations of law not within its jurisdiction to appropriate law enforcement authorities concluding with the cite 52 U.S.C. -- madam secretary, this is identical to the motion made at the previous meeting.
Thank you, Madam Chair.
>> Thank you, Commissioner Goodman.
Other comments or questions?
Commissioner Walther.
>> I think it's fair to do this because we already announced it in our -- we already automatically give it to somebody who has filed Sua Sponte.
I think in fairness and procedurally to everyone, everybody is entitled to the same notice, rather than those Sua Sponte and those who happen to get a notice in the mail that we're taking a look at their conduct.
I know that there has been some opposition to this because of the view that very seldom do it, and it is kind of an excessive scare perhaps to somebody who might get that language included in a notice, but I think in fairness, that the notice is better early than later, and if it becomes a problem, so I'm going to support it.
>> Any other comments?
Well, I am not going to support this in some ways for some of the reasons described by Commissioner Walther.
Commissioner Goodman said this is putting this matter front and center, and it's letting people know about their legal implications.
Well, I think both of those things are true, and both of them are in some ways problematic because putting it front and center indicates that it has greater import than many other legal implications that people are subjected to that were not going to put front and center.
Thereby isolating it out as something that is incredibly significant when, in fact, as has been reported on by one of our esteemed reporters who follows the FEC, this is done with incredible rarity, and will unnecessarily chill people's willingness to cooperate in what might be a very inconsequential and definitely not knowing and willful or criminal case involving the Commission.
So, for those reasons, I will oppose this proposal. 
Are there any other comments?
Hearing none, there is -- is there a motion?
>> The motion is on the floor.
>> Of course.
It's on the floor.
Sorry.
All of those in favor please indicate by saying aye?
[Chorus of Ayes]
>> All of those opposed?
No.
Madam secretary, that motion passes by a vote of 4-1, with commissioner Goodman, Walther, Hunter, and Vice Chair Peterson voting yes and commissioner Ravel voting no.
The next item is -- has been continued.
And we are now to the significant matter of the day, item number 6, and you are not Mr. Staff director.
You are Ms. Acting in the place of staff director -- are there any management or administrative -- 
>> Excuse me.
I do have one point of personal privilege before we conclude.
>> Of course.
>> I have an announcement to make.
My long and trusted advisor, Gary Lawkoski will be departing the Commission in about a week and a half.
I have appreciated his thoughtful and logical counsel, very wise counsel.
He served commissioner McGann, he is a young man who learned very fast and under stands the nuances of what we do and logic of what we do as well as anyone I have ever seen in this business for 20 some years.
He has great potential in his field.
He will be going in-house to an organization freedom partners chamber of commerce to help them comply with the laws that apply to their nonprofit and political and idealogical advocacy and work.
So, if you -- I know he will be taking off next week.
If anyone wants to speak to Gary before he leaves, get him before this Friday.
>> Thank you very much for letting us know.
And Gary, it's been a great pleasure to work with you and we're going to miss you. 
We're going to miss you.
This is your moment, are there any management or administrative matters that the Commission needs to discuss this today?
>> Madam Chair, there are none.
>> Thank you very much, this meeting stands adjourned. 
[Gavel Pounded] 

>> We have a closed session following this meeting and I think everybody probably wants 15 minutes to get a cup of coffee or the like.
If we could return -- it's about -- I'll give you a little extra time but don't take advantage of it.
So, it's approximately 10 minutes to 11, and if everyone is back by about five to 10 minutes
 
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