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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 of 80,000 voter guides in October of 1996.  The Salvi campaign admitted in its response that its employee requested the voter guides and the guides were as a result delivered to the candidate’s committee.  Even if the voter guides were not “express advocacy” (an unlikely claim given the slanted description of Salvi’s opponent), the actions of the Family Taxpayers’ Foundation and the Salvi campaign were not disclosed, involved a clear corporate in-kind contribution, and should have been subjected to further review.

 

            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                                                            / s /

___________________                                  __________________________________

Date                                                                 Scott E. Thomas                                                                                                                       Vice Chairman                

 

           

                                                                                    / s /

___________________                                  __________________________________

Date                                                                 Danny Lee McDonald

                                                                        Commissioner

 

 

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___________________                                  __________________________________

Date                                                                 John Warren McGarry

                                                                        Commissioner