BEFORE THE FEDERAL ELECTION COMMISSION
In the matter of
Citizens for Fair Representation, et al. Family Taxpayers’ Foundation, et al. Renew New York PAC, et al. |
MURs
4491, 4519, and 4563 |
STATEMENT
OF REASONS
VICE
CHAIRMAN SCOTT E. THOMAS
COMMISSIONER
DANNY LEE MCDONALD
COMMISSIONER
JOHN WARREN MCGARRY
We opposed the staff recommendation to close the three above-captioned cases. In our view, these matters should have been slated
for activation as soon as resources became available in the General Counsel’s Office. They presented special or aggravating
circumstances warranting immediate action. Even
if not activated as soon as resources became available, these cases should have been kept
on the docket along with other similar 1996 or 1998 election cycle matters involving
allegations of “express advocacy” ads masquerading as “issue” ads or
coordinated ads masquerading as independent ads. These
types of cases involve perhaps the greatest potential for evasion of the current statutory
scheme and have been targeted as a class under the FEC’s current Enforcement Priority
System (EPS). Only by keeping all such
similar cases on the docket can we commissioners retain the ability to exercise judgment
as to which targeted matters should be activated and which ultimately dismissed.
Our colleagues, Commissioners Aikens and Elliott, pressed to close MURs 4491, 4519,
and 4563. During the meeting discussion we
were told, in essence, based purely on the date the complaints were filed, these cases had
become “stale” under EPS and there would be chaos if commissioners tried to
decide which of the many cases raising similar issues ought to be pursued. Beyond that, our colleagues made clear, even
without the benefit of analysis by the General Counsel’s staff, they did not see any
allegations in these cases that warranted
pursuit. Given this, it was pointless to let
these cases languish on the docket with no expectation that any findings would be made. Thus, in order to make a record, we supported a
motion to activate these matters; only when that failed 3-2 (Aikens and Elliott opposed)
did we support a motion to close the files.
I.
The FEC has experienced an explosion in its enforcement workload over the last few
election cycles. The number of complaints has
increased, the number of apparent violations flagged internally by staff has increased,
and the complexity of allegations has increased. In
an effort to meet this challenge, the commissioners have worked with the staff to develop
several responses such as: reducing the
number of enforcement matters referred internally from the Reports Analysis Division and
Audit Division, using technology to speed legal research and writing and to eliminate
duplicative paper processing, adopting more flexible investigative techniques that do not
require formal Commission approval at each step, and streamlining other internal
procedures as much as possible.
In late 1991, commissioners urged the staff to develop the EPS. It was approved in early 1993. It is designed to rate cases objectively and allow
the staff to focus limited resources on cases that most warrant pursuit. These include cases presenting the most serious
violations and cases in certain target areas presenting potential for evasion of the law
or the fundamental requirement of disclosure. Under
EPS, cases periodically are reviewed and recommended for dismissal either because they
have remained inactive on the docket for a certain period of time or because they simply
do not rate high enough on the objective point system.
With only about 30 line attorneys to work cases, and (as of December 1 of this
year) 281 cases pending involving 2,255 respondents, inevitably many cases simply must be dropped with no findings
by the Commission.
The EPS, however, was not designed to turn commissioners into human automatons
blindly rubber-stamping the recommendations of the General Counsel’s Office. It was not structured so that when the staff
recommends closing particular cases because they have been on the docket for a certain
length of time the commissioners must mechanically say, “Aye.” Commissioners retain the ability to analyze the
cases recommended for closure and to disagree with the recommendation to close based on
factors indicating, for example, that the cases raise allegations of serious violations or
allegations that fall in a target area. Indeed,
commissioners have voted to reject such staff recommendations in the past, and did so on
one occasion the same day MURs 4491, 4519, and 4563 were considered.
II.
In our view, any objective analysis of the three cases at issue would conclude they
involve serious allegations. Beyond that, we
believe these cases should have been retained on the docket for a reasonable time to
compare them against other cases raising similar allegations. While we can say nothing about the other cases
pending on the docket, these three cases clearly warranted pursuit if resources became
available.
The first, MUR 4491, involved allegations that an organization called Citizens for
Fair Representation distributed a flyer saying in its headline, “Organized Labor
Behind Sherman Campaign,” referring to Sherman as “a completely different person
than the candidate he would like the voters to believe he is,” and concluding with
“Who do you think Brad Sherman will answer to if we send him to Washington, the
pro-business voters of the 24th Congressional District, or the East Coast Labor Bosses who
financed his campaign?” At a minimum,
this case presented a clear case of “express advocacy” under the FEC’s
regulation at 11 CFR 100.22(b). Even if the
group could have escaped the prohibition applicable to corporations (2 U.S.C. §441b),
there appears to have been no disclosure of who funded this activity and whether
permissible funds were used. Moreover, this
case presented aggravating circumstances. The
treasurer of the group formally registered with the FEC as Citizens for Fair
Representation responded the group had disbanded long ago.
Thus, someone appears to have been hiding behind the name Citizens for Fair
Representation in order to thoroughly escape any disclosure or detection. Given these facts, it is baffling our colleagues
would not at least want to retain this case on the docket to see if resources would permit
investigation.
MUR 4519 involved admitted coordination between the Salvi Senate campaign and an
organization called the Family Taxpayers’ Foundation regarding the distribution
Finally, MUR 4563 involved allegations that in the Fall of 1996, through
state-registered political action committees controlled by Sen. Alphonse D’Amato,
extensive advertising was run in the State of New York which indirectly promoted Sen.
D’Amato’s campaign for reelection in 1998.
The ads were described as containing images of Sen. D’Amato strolling the
beach with his family and a comment by his daughter describing him as a
“fighter.” As this case involves
allegations of a carefully crafted effort to make an in-kind contribution using funds not
regulated under federal election law, it presents a serious allegation. More than anything, however, we objected to
closing out this case on the ground it was “stale” when it involves charges
about an upcoming election. Surely,
commissioners should not permit the enforcement priority system to force such contortions.
III.
In sum, we think the cases cited above warranted further analysis by the staff and
commissioners. To simply drop them now,
rather than wait to see if they present better cases to pursue than others involving the
same or similar targeted issues, belittles our role as supervisory officials.
1/23/98
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Scott E. Thomas
Vice Chairman
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Danny Lee McDonald
Commissioner
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John Warren McGarry
Commissioner