This file contains archived live captions of the open meeting of the Federal Election Commission held on July 13, 2017. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission. >> STEVEN WALTHER: Good morning, everyone. This will convene the open session of the Federal Election Commission. I apologize for the delay, but sometimes there are new documents being prepared to look at and it takes time to digest them and figure out what steps you want to take in connection with the drafts that are forthcoming. That's what happened here. I want to -- we're taking up the first matter with respect to the request by the House of Representatives to permit public use or to permit campaign funds for use in connection with improvements to residences for purposes of safety and we have a number of documents that have been made blue, which we call the ones that have been on file, which you can see that address that issue. First of all, I would like to just thank Sergeant at Arms Paul Irving, who is with us today and his assistant, Tom, deputy Sergeant at Arms for working with us in the process. And for your ingenuity and deciding to take a run at this approach for the Federal Election Commission to consider and I know that the people that you worked with have thought you have been really great to work with, and I wanted to also mention that I did have a conversation last night by telephone basically just saying the same thing, that it's been nice to have him here to work with. The exception that we are talking about today has three minor differences, and we have -- I know there's votes to -- no matter what will happen, I want you to know at the outset of our conversation, ultimately the Commission wants to move forward with granting that we quest and we have some ways that we see things differently, but I think ultimately we have no difficult in the long run writing that relief. The three documents changed a little bit, and I would like to address some of the changes that are before you. There are -- the path I took is what I call draft B. Draft A, which you're aware of, grants the request pretty much as requested, and that has a support of a significant number of Commissioners here. I made a proposal on my own that is different, but ultimately I believe that when push comes to shove, that AO draft should be ultimately prevailing if it has to. The difference between the proposal that I made and the one that has the -- and Draft A, minus Draft B, a difference in a couple of respects. We have experience with providing exceptions to the personal use in the past, an the three instances with respect to members of the House, and in those particular cases, each particular member came to the House, specified the nature of the threat and usually it was in the -- after a significant matter occurred, and made a specific proposal with respect to the type of improvement wanted. In each instance, the Commission has granted that, and I think it's safe to say that if people want to continue that process, no matter what happens today, that will change things. We have in place the beginning of a tradition to permit that use of campaign funds for that purpose. In each of the instances, there's not been more than I think the top amount of money that was expended was $7,000, and in the one in Draft A where I have my own concern was that as drafted, there's no limit on -- other than what is called "reasonable" on the amount of money that can be spent, and as you know, the way the Draft A provides for any member of the house to automatically use that money does not have to come to the Commission. For those reasons, I thought that we should cabin in that to have an amount that, if I were counsel, I would want to have some guidance on who I could tell my client, so I suggested Draft B $15,000, for example. And I also suggested that we have a term within which we take another look in a year and see what, if anything, can be done at that particular time. We would have a chance to look at the actual nature of the threat with more precision. We would know to a greater degree the extent the Senate would have comment, and we could see how well it was working for all of us. That's not in Draft A. And I think that those are the two main -- the three main differences, as I see it, between those two. Commissioner Weintraub proposes some changes last night. They've been considered by three of the commissioners and I think there will be discussion back and forth on that, but overall I think that's pretty much where we stand rather than try and run everybody through the separate documents. But I would like to thank the Sergeant at Arms and invite you to make any comment you might have at this time. By the way, if in the process of going back and forth, you have something you want to add, certainly feel free to do that. But welcome and have a seat and you may do the same. >> Good morning, Mr. Chairman, and Commissioners. I do have a brief statement. I thank you for the opportunity to appear before you this morning. Thank you for considering the critical issue of allowing Members of Congress to use campaign funds for non-structural residence security systems and monitoring of those systems. Technology has transformed the threat environment that confronts elected firms. The proliferation of Internet and social media platforms such as Twitter and Facebook along with the dark web has created avenues for individuals to make threatening statements directed at members and their family members. And disseminate information such as addresses, PII with a cloak of anonymity. Members face in-person threats. They've been followed and harassed from town hall meetings and had items left at their residences and residences broken into. Capitol Police thoroughly investigate each threatening incident, however, threat investigations are by their nature reactive. Value time may pass before the individual making the threat can be identified. Capitol Police cannot initiate investigation until a threat has been made. A threat assessment is a term referring to a background threat or direction of interest investigation into a particular member. Threat assessments are resource and time intensive. They require a fair amount of lead time and unfortunately violence or harassment of members and their families does not always wait for a thorough investigation. Many individuals that act -- that act on impulse and many of them have never made a threat before the assessment is conducted. This was the unfortunate situation on June 14th. The mitigation of these unknown threats is difficult. However, one method is to install residential security systems. Installation of these systems offer protection to a member and their family, and I believe that every member should have a residential security system due to the threat environment that they face solely because of their elected status. Again, I would lake to thank the Commission for considering this advisory opinion. >> STEVEN WALTHER: Thank you very much. If the Senate Commissioner would like to ask a question. Commissioner Petersen. >> Thank you for appearing this morning. You talked about every member should have a residential security systems. What are the elements you typically would advise be part of that system? >> Residential security systems are fairly straightforward. Usually it would include a motion sensor, so if someone was to enter the home, family would be aware of that. They're typically glass breaks or door contacts that would indicate whether a glass is broken or whether a door has been opened. And those -- if a signal is triggered, then it would -- the signal would go back to an alarm company that would notify the police to react. Many systems also include PAC or duress but sons so if someone is home and realized they're broken into, they push a button and immediately get in contact with the alarm company and police. They're fairly straightforward systems. >> Do you advise upgrading locks and other things like that as part of an enhancement of the security environment around a member's home? >> Yes, usually when a residential security survey is conducted, the company will recommend certain locks be upgraded, for example incident to that. But I would consider the main portions of the security system to be those that monitor the home versus any structural change. >> Okay. Thanks. >> Commissioner, do you include cameras, security cameras, typically incident what you would recommend the member to have? >> It depends. It would depend on the particular incidence. Sometimes security cameras are recommended. Other times not. I am not going to say a security camera is always a need. >> Going forward, will there be coordination -- these are dangerous words right now, but any kind of, I guess, period during which you work with them on what they want, so do you know that or do they just go ahead and at this point, based upon -- assuming Draft A goes through, there would be no reason to require any permission from your office or certainly from the FEC either. So how would that work? In other words... >> Members know that they can contact my office and routinely do for any security consideration, whether it's -- any security advice, whether for the district office or whether for their residence, so they know that my team can provide them, you know, valuable guidance and actually we can -- if they do receive a security survey from an alarm company, we can validate that, and so they do use us as a resource. There is nothing that mandates that, but it is a rather common practice. >> STEVEN WALTHER: Right. Any further questions? >> Is part of the security recommendations you typically make, there are a number of hardware pieces, camera, locks, distress devices, sensors that you mentioned, do you include in what you're asking for for non-structural security devices the services that are attendant to those devices, such as the alert system and the people who respond to your home? >> I would include the monitoring as part of that cost, and that would be certainly those that respond, which would be the alarm company or the local law enforcement, anything tied into that system. >> Thank you. >> STEVEN WALTHER: Anything further? >> Thank you. Thank you for coming. I know that Congress recently appropriated extra funds to upgrade the security and congressional offices. Why are you seeking permission for them to use campaign funds as opposed to, you know, obviously they can appropriate funds. They're the appropriators. Why are government funds not being used for these security improvements if they are designed to protect people in their capacity as Members of Congress? >> I see this as another resource. I cannot address the issue as to what Congress limited to district office versus residence, but I can say that I'm just looking for another resource for members to use to enhance their security. >> ELLEN WEINTRAUB: Have you suggested to Members of Congress that, you though, they could do this -- I'm just wondering why this route is being chosen rather than the other, and if there's any information that you can provide on that? >> I really cannot. There has been discussion into it, and that's about as far as I can say at this point. >> ELLEN WEINTRAUB: It's... this goes to, in some sense, to one of my concerns about the process by which this is being put before us. As you know, under our statute, people are entitled to come to us with questions about how the campaign finance law applies to things that they personally are proposing to do. We have tried to guard pretty strictly the ability of third -- we don't want third-parties coming in and asking questions about other people's conduct, and also for a variety of reasons, you know, and one of them is that you're not a member of Congress. You're not the one who is going to be doing this. You know, I can't ask you questions that I could ask of a member of Congress. And honestly, as important as I understand the request to be, and, of course, I completely understand, we all understand how horrifying the events must have been and terrifying, you know, I completely agree with you, we live in increasingly fraught world where people show up at baseball games and pizza parlors with guns. You know, this is -- it's a crazy world that we're living in these days. And I think we're all sympathetic to the concerns that are being raised here. From a procedural standpoint, the reason that I'm willing to go forward with this request coming from you as a person who is not actually affected by the outcome of this is in part because of the exigent circumstances and in part because of the supporting letter that we got from congressman Harper. I found that extremely helpful to me. He obviously is a member of Congress and would be affected by the AO, and I'm kind of importing his support into your request to give that standing, basically to make the request. But it is -- it does put us at a bit of a disadvantage because you are not the person who is directly affected by it, you know, it's harder for us to get answers to some of the questions that we might ask. You know, in general I think -- on the three prior AOs, I supported all three of them. I supported those AOs when members were under a specific threat. I do have some concerns, and they prompted some of the edits that I made, about the limiting principles, you know, how far could this rationale be used? You know, could somebody, for example, say, I feel unsafe in my current home, so I need to move to a gated community and I need to use campaign funds to pay the higher rent and mortgage or mortgage at a gated community where there will be extra security. I feel the need to have a high fence around my property or install bullet proof glass. I feel the need -- I feel like my family is not secure, so I think I need to send my children to private schools and I want to use campaign funds to pay that, you know, based on my security concerns. I mean, one could imagine the principle of people being concerned about security and their role as a member of Congress and therefore needing campaign funds to buttress their security. One could imagine that principle being extended fairly far, and to a place that I personally would have qualms about going. I think the fact we're only talking here about non-structural changes to members' homes gives me -- puts me in a place where I'm willing to go forward with this on the assumption that it cannot be extended beyond the terms of this, and also the fact that I've suggested that we make sure that it's all explicitly disclosed so that -- because we're not putting, I think, most of the drafts do not have a dollar limit on this. You know, I've done a little bit of Googling on my own or my staff has and most of these kinds of home security systems are not terriblely expensive. We're talking about a few thousand dollars, and that's been the case with the requests we've gotten in the past, and I think as long as we have it all disclosed so that members' constituents can judge if they think they're getting carried away with how they're using campaign funds, I think that resolves that concern. I do think having -- the reason I asked about using government funds is that I think I have a longstanding concern about the indebtedness that can be created between a Member of Congress and their donors, and if they are, in fact, relying on their donors for their family's security, I think that sense of indebtedness would only increase. Now, again, I can get past that because it's going to be so diffused over the number of donors that a Member of Congress has, but I think that as concerned as I know we all are that, you know, Members stay safe, I do think there are some countervailing issues on this that we have to bear in mind. As the Chairman indicated, I made some edits to the first draft, which I guess was Draft A. The draft that I suggested was Draft C which would, again, say, yes, but, you know, put a few parameters on the outcome. So that's kind of where I am. And I agree with the Chairman, I think everybody is looking for a way to get to "yes" here. >> STEVEN WALTHER: Madam Vice Chair. >> Thank you Mr. Chair and thank you for coming this morning. I think we have at least three votes for Draft A which went out last week. I'm not sure how my colleagues will vote on that, so I'm not going to make that motion at this time, but my understanding is some may be willing to join us on Draft A, so we'll see how the conversation goes. With respect to the comment of Commissioner Weintraub about this being a third-party request, as you know, we have considered a number of AOs in the past that in my opinion were far more of a third-party request than this one, including Senate Majority PAC, advisory opinion 20-6, and I won't bore you with details, but this is not a third-party request. The Sergeant at Arms is chief officer for the institution and intimately familiar with day-to-day threats that all members receive due to status as elected officials. The notion this would be considered a third-party request in light of things we've done in the past just doesn't make a lot of sense based on our previous history. With respect to the draft that was placed on the agenda and circulated last night, we've taken a look at it and there's points in here that we won't be able to support. I'd be happy to walk through them and maybe we can get some comment on some of the specific things. And then at the appropriate time I can make a specific motion removing those things and see if it garners additional support. The crux of the issue that we have -- or we want to go back to the language that has been approved in the past that allows for different security systems. So the first edit would be on Draft C, Page 3, Line 20. >> This is the blue docket, right? >> You've been given a red line. It has not been given a red line? >> She's operating from the blue draft >> But do we have a red line? >> I don't think I do, Mr. Chairman. I'll check. >> STEVEN WALTHER: To make it easier for you to tack the conversation, I think on the different parts of... >> CAROLINE HUNTER: So working off what we call the blue document of Draft C. The gist of the edits that we would make to this are that we would delete the references to increasing the value of the members' home, because I think it's fair to argue that anything could be seen as increasing the value of someone's home, anything -- even something insignificant. Another sort of overall comment is that we put back -- we reinsert the language of the request as opposed to a different language that was proposed by Commissioner Weintraub, so the appropriate places we put back in the request, which is residential security systems that do not constitute structural improvements. I'm not going through specifically, I'm just doing a general, and then we can go through specifically line by line. Some of the things that Commissioner Weintraub talked about, I think one of the things she said was moving your kids to a private school. I don't think that's constituting a structural improvement to the home, so I think that language caveats in such a way that we are fine going through, and that's what has been requested. The other sort of global change is the notion that we would use this advisory opinion as a sword, as something to go against people who may have purchased a security system before June 17th is something that we're not willing to support. Obviously this advisory opinion will be in effect as of the date that it gets four votes here, but to the extent that somebody purchased something in the past, perhaps they were relying on a different advisory opinion, I'm not -- we're not willing to go back in time and say something that you did is now a violation of the personal use provision. So we intend to take that out as well. That's just a global overview of our changes and, again, happy to walk through them point by point. >> STEVEN WALTHER: Commissioner Weintraub. >> ELLEN WEINTRAUB: The second one I have no problem with. The... you'll have to read the language, but it was the description of it as residential security systems that don't make structural changes >> CAROLINE HUNTER: The one from the residential security systems that do not constitute structural improvement. >> ELLEN WEINTRAUB: That's fine. We're just trying to simplify the language, and since part of what I was trying to do is provide a framework for people to disclose it, we thought having a shorter term would make it easier in terms of disclosing it, but that's fine. I have no problem with that. >> CAROLINE HUNTER: Okay. >> ELLEN WEINTRAUB: The... I'm sorry, what was the last point that you made? >> CAROLINE HUNTER: The one about taking out the thing that it's a violation if you use -- >> ELLEN WEINTRAUB: All right, so let me just explain... >> CAROLINE HUNTER: Just so people know, it's Page 5, lines 5-7. >> ELLEN WEINTRAUB: Let me explain what the intent of that was. And I made a point of using June 2017 so that if somebody -- I didn't want to actually use the date of this opinion because somebody, right after the baseball game was scared for their family, went out and bought, you know, upgraded their security two weeks ago, and we put out this opinion today. I think it's perfectly fine for them to take advantage of this opinion. I wouldn't want that person to be in a different situation from the person who was, you know, waited another two weeks. You know, that's not the problem. The problem that I was -- that I wanted to forestall was the possibility that somebody who for their own reasons -- a lot of people like to have home security systems, might have installed a system ten years ago just because they -- for their own reasons and now they say, oh, good, now we have an opinion and we can use campaign funds to pay ourselves back for these expenses that we've been incurring for the last ten years. I don't think that was the intent of the request, but we just wanted -- that was the issue I was trying to address there. Now, if somebody had a specific threat that was analogous to one of the other opinions that we've already issued and in reliance on that opinion they went out and used campaign funds, I think they would be fine. But as I said, I think, you know, if somebody has had -- let's say somebody had a home security system since before they were a member of Congress and they see this opinion and they say, well, now we're going to, you know, reimburse ourselves for all our home security expenses going back to the day we took the oath of office. I think that would be inappropriate. So that was the issue I was trying to get at, and as I said, I was trying not to jam people who might have gone out and gotten home security systems a week ago, which I think would have been a reasonable thing for them to do. >> STEVEN WALTHER: Madam Vice Chair. >> CAROLINE HUNTER: I hear what you're trying to say. I can't think of a way of writing that that would not find it illegal for somebody who went back. And I do think people would have -- my guess is if they went back and paid for something that was already -- I think we're better off taking the language out, but happy to consider if somebody has an idea to try to capture that. I think, again, people can go back and rely, as you mentioned on previous advisory opinions. >> ELLEN WEINTRAUB: Could we say unless they were acting in reliance on a previous advisory opinion issued by the Commission >> CAROLINE HUNTER: No, because I don't think we ever want to say, this is a violation of something. Again, I think we're better off taking the language out altogether. >> STEVEN WALTHER: Ms. Weintraub. >> ELLEN WEINTRAUB: Unless otherwise allowed by a previous advisory opinion. What if we simplified it to this guidance is prospective only as of June 2017? >> STEVEN WALTHER: Madam Vice Chair. >> ELLEN WEINTRAUB: All our advice is prospective only. >> CAROLINE HUNTER: Right. You're just trying to capture the people who may have gone out and bought a system between the time that we got the letter and now? >> ELLEN WEINTRAUB: I'm trying to make sure those people are safe, that it's very clear that they would be protected, because otherwise only people who acted after we formally issued the advisory opinion would be protected under this advice. >> CAROLINE HUNTER: Let's go through the other edits and come back to that one. We might have to take a quick recess in order to write up the edits and present it more formally, but we can consider that. >> STEVEN WALTHER: Did you have another -- Ms. Weintraub. >> ELLEN WEINTRAUB: I've got to believe that's a resolvable issue because I don't think it's a big debate. I think the intent issue is going to be a little, but more of a sticking point for me. Because we are -- I mean, we are normally doing things that are related to their home would be personal use. Normally we would not allow somebody to upgrade anything in connection with their home as a personal use. And that's why I think we have to be very careful when we are carving out this exemption, that it does not end up swallowing the rule. And this was -- this edit was in direct response to a comment that we received from the campaign legal center. >> CAROLINE HUNTER: And remind us what that -- specifically what the comment said about -- the Campaign Legal Center, the security Campaign Legal Center? >> ELLEN WEINTRAUB: And by the way, I think that we're talking about non-structural changes. You know, I think what I'm envisioning, and as I understand it, what the request envisions are basically removable objects, camera and monitoring that would not be structural -- they're not like fixtures to the home. But if you want to throw in a specific reference to upgraded locks, I have no problem with that, because I think that, you know, on a multiple hundred thousand dollar home, which most are worth these days, the added value of improving locks is not going to appreciablely make a difference in the selling value of the house. So if you want -- if that helps us move forward, I'm perfectly happy to say that lock upgrades are included within this. All right. So the comment says the personal use restrictions are objective and clear, return on the nature of the goods and services purchased, housing clothes, other expenses that would exist irrespective of the office holder duties. Draft A in contrast would provide that the key question is not what the spender buys but rather what he or she intends to accomplish through his or her spending that subjective inquiry cannot with reconciled with the text of section 30114. And it goes on to note -- and I'm not suggesting that that is what is being requested here, however, this comment states, as we noted in our comment on the request, spending that increases the value of an official's residence has been involved in many corrupt quid pro quo arrangements, and in recognizing members' legitimate and lawful need to secure homes, the Commission should not throw open a door to such corruption. There have been cases that involved upgrades to members' homes using campaign expenses or having people come and mow the lawn or, you know, all sorts of things like that, and I think that was the concern. I'm not saying that anybody is intending that to happen here. I'm sure they're not. But it was just an attempt to tighten the language to forestall somebody in the future from drawing an erroneous conclusion from the language that we would put out today. >> STEVEN WALTHER: Madam Vice Chair. >> CAROLINE HUNTER: Thank you. Our intention would be to change that back to the language that we've used in previous advisory opinions, which would be proposed upgrades, which were not intended to increase the value of the property. If you install a security system, you're doing it because of the security threat, not to increase the value of or your home, and I think it's fair to say that installing a security system or even installing a motion light in your home is going to increase the value of your home. So I don't know -- I don't think your language is workable and I think that the intent, again, is from our previous advisory opinions an does capture in my mind what you're concerned about. You don't want somebody using campaign funds to improve their home so they can sell it for more later, but they're doing this in order to protect themselves. >> STEVEN WALTHER: Any further comment? >> CAROLINE HUNTER: So are you -- sorry. >> STEVEN WALTHER: Go ahead. Do you want to take a few minutes to see if there's any drafting that can -- >> CAROLINE HUNTER: I would be happy to take some time, but we have three votes for we're not intending to increase, again, following the precedent of the FEC and I need to know if we have a fourth vote for that. I don't think it's a drafting issue. >> STEVEN WALTHER: Mr. Goodman. >> Let me try out a couple of concepts. And to the Sergeant at Arms, I'm glad you're hear to listen because I like your reaction to some of these edits, to make sure they serve the security objectives that you're trying to achieve. >> Which draft are you working on? >> I'm working on Draft C. Because frankly I share Commissioner Weintraub's concern about slippery slopes here, and I thought many of your edits were constructive, and I agreed with some of them. So I want to try -- I'm willing to work within the construct of C, but there are some of these -- there are more legal concerns for us, but I want to make sure that as we address or legal concerns here that we get you where you need to go to provide the security your members need. >> Do you have a copy of Draft C? >> I do. >> And let me just say, as I approach these edits, what I am convinced of is that these security concerns that we're hearing, I'm sure you've had members approach you in the current political environment in which we live and ask you these questions. You didn't come here, I take it, suasponte, you have request from members feeling they need security services at their homes. >> Yes. >> Okay. So you are representing those concerns here before us? >> Yes. >> Okay. So what I am convinced of is that a security service on your home has become an incident of holding public office today, and it exists because you serve in public office today. Now, as a consequence of that, adding a security service to your home may enhance the value of your home. Now, we have never -- we haven't offered a home improvements in the past, so that concept of enhancement of value does get to personal use and personal enurement to the member. Here, since what we are carving out is a very specific exception to the personal use, by recognizing this is now an incident of public service, I'm just concerned that to tell the Sergeant at Arms and the Members of Congress, yes, you can add a security service, including locks appropriate to your residence, but only if it doesn't improve the value of your home, I'm afraid that may be as a practical matter an encumbrance that you and your members may have difficulty proving, that they haven't enhanced somehow by adding cameras to their home, the value of their home. So as long as we cabin in that this is about security services, that they are non-structural, I'm not as concerned if they happen to incidentally improve somehow the value of the home, because implicit in here is not someone remodeling the kitchen, okay? So what I'm going to suggest is that on Page 3, Lines 19 and 20, we strike the proviso and the proposed upgrades did not increase the value of office holder's property. So we don't put people in a catch-22 that, oh, gee, these locks may increase the attractiveness of your home on the market. So long as later we are going to have a litany of the things implied in the security services that we a prove. The same phrase shows up on Page 4, Lines 14-15, the proviso would -- I would strike the proviso that do not increase the value of the members' homes. We put a comma after residences and continue regardless. And I don't know if I've captured everything that the Sergeant at Arms has covered here, but in the sentence that begins at the bottom of Page 4, Line 17, specifically -- and this is where I'm sympathetic, Commissioner Weintraub to what you're trying to achieve to prevent slippery slopes to be as specific as possible, and continuing on Page 5 at the top. I just want to be sure that we cover all of the services attendant to the security upgrades that we're talking about. And so I'm wondering if it would suffice to, on Line 1 of Page 5, it currently reads "cost of cameras, sensors that we splice in, distress devices and similar non-structural security devices as opposed to removable. The non-structural was the word used in the request to us, and I believe that's the concept that" removable "is trying to get at. And after security devices put "as well as locks, in and around a members' residence." And the reason I separate out locks, because I think they are structural. I mean, I think you put a new lock on a door, that becomes a structural change. And then I think that an advisory opinion stands on all fours. This implicitly does say in light of the current threat environment, and I don't want to start imputing guilt to things that people may have done in the past and may have a legal argument that it was attendant to their public office that they needed security system previously. So I don't think we need to go declaring certain things to be unlawful when implicit -- this implicitly stands for the proposition from this day forward and there are past advisory opinions, and we would be able to judge those if they were before us alleging someone went beyond what we consider to be incident of public office. Those would be edits -- are there other edits that you had to this? I'm trying to collect them all here. >> Commissioner Goodman pointed out an incident of the concept of increasing the value of a home on Lines 14-15 of Page 4 that is also on lines 5 and 6. >> 5 and 6, okay. >> LEE GOODMAN: Commissioner Weintraub, I don't have words here. I would be willing to work on a footnote, perhaps, because Commissioner Petersen just leaned over and mentioned it to me. I'm not trying to get personal enurment to enhance values of homes. We might be able to fashion a footnote if we took a brief break to say that implicit in these is that the intent of the security improvements would not be to improve the value of the home, to preserve that thought running throughout. I'm just afraid that putting it in the text in the way it is, every time we say, yes, you can have a security system, but not if it raises the property value of your home, I'm afraid that puts people in a catch-22 and puts the Sergeant at Arms in a catch-22 when he has to give advice on what you can and can't do with your home. But if we add an intent or some type of intent language in the document that the purpose of this is security and not to increase value of home, I think that would cover us from saying -- and being able to prove objectively that the improvements you made to your home here were really to provide value to your home and not provide security, and that was not contemplated by the Commission. I'm trying to preserve that concept. I just don't want to do it everywhere we tell the Sergeant at Arms that, yes, people can have it, that that's going to be a caveat. >> STEVEN WALTHER: Commissioner Weintraub. >> ELLEN WEINTRAUB: I think there could be a path forward there if we say "non-structural" where we're taking out, you know, for example, on Page 4, Line 5-6, if you want to take out "not to increase the value of the members' homes," then I would want to add in "use of campaign funds to pay for the non-structural security upgrades" or other... >> LEE GOODMAN: And that is fine and that is the request before us. >> ELLEN WEINTRAUB: As otherwise specified in the opinion or language of that nature. You know, I think the concern that the commenter had -- and I do share this -- is that throwing intent in you know, is really kind of -- it mushes up what is otherwise hard and fast rule, you know. Well, I didn't intend to have it for my personal use. You know, how are you ever going to prove what somebody's intent was or wasn't? Maybe I intended it a little bit, but I didn't, you know... I just... >> LEE GOODMAN: I agree. >> ELLEN WEINTRAUB: You know, I'm trying -- >> LEE GOODMAN: I'm trying to solve a practical problem. >> ELLEN WEINTRAUB: I appreciate that. Also I think we're in a slightly different posture here than in the past, because in the past we had one member who came to us, and I think in all three instances they said specifically, I want to do this, this, and this, and this is how much it will cost. And this is going to be a blanket opinion -- well, it would be -- not sort of. It will be a blanket opinion that everyone is going to point to and say, look, I was relying on that. >> LEE GOODMAN: You could possibly do a little to your house but increase the value a lot and do a lot but increase the value nil. But let me ask Mr. Chairman or the Sergeant at Arms. Can you react a little bit to this problem we're dealing with, we're trying oget you where you need to go as a practical matter but also preserve our legal construct? >> Thank you. I do toned to agree with your perspective, although most of the security systems would enhance the value of the home appreciablely considering the cost of the home today and security systems are rather straightforward, and frankly, what makes a security system what it is is the monitoring, which is a costly fee, that the new owner would need to continue. So however, having said that, I would tend to agree any language that could constrain -- that could cause an implication, such as an enhanced lock, that could -- one could argue could increase the value of the home could be a constraint. So I do tend to agree that if we could remove that and go forward with the intent of what we're trying to achieve, I think that would be most helpful. >> LEE GOODMAN: We haven't been able to do so just sitting here come up with something other than intent as the cabin for this? Because I understand Commissioner Weintraub -- I mean, getting into the intent of people. I understand it's not your intent. You're not worried about remodeling people's kitchen. You're worried about providing security to people. I understand your intent. But we're getting ready to let these -- we're getting ready to open the barn door a little bit. So how do we cabin that? Is intent the concept or is there another concept? >> I think we can work with you if you give me a little time to work on it. I think I can come up with something that narrows this down and hopefully satisfies both sides. >> STEVEN WALTHER: Let's take 15 minutes and see what happens. >> Okay. >> STEVEN WALTHER: We're ready to reconvene. Madam chair, do we have motions >> CAROLINE HUNTER: We have a housekeeping motion that we forgot to do at the outset. I move to suspend the rules on the timely submission of agenda documents in order that the Commission may consider the following documents. Agenda document number 17-33A, agenda document number 17-32C, agenda document draft D of the Sergeant at Arms advisory opinion request, agenda document 17-30B, agenda document 17-31B. >> STEVEN WALTHER: Thank you very much. All in favor. [ ayes ] Opposed? Passes unanimously. I understand we have a deal. Anyone would like to discuss it first? Ms. Weintraub. >> ELLEN WEINTRAUB: Thank you, Mr. Chairman. We do have a deal, and that's a good thing. So based on our discussions both, you know, in the public part of the meeting and in our little confab during the recess we agreed to make a number of changes to Draft C that I think satisfy everyone. >> STEVEN WALTHER: May I just inquire, does the Sergeant at Arms have the current draft? >> PAUL IRVING: I do, thank you. >> ELLEN WEINTRAUB: So I'm going to be -- I think the easiest thing for me to do is to key this to the red line version, which is going to be a little confusing for those of you out in the audience who don't have the red line version, but it will make sense to the Sergeant at Arms and everybody at the table. So this is Draft D. We've just admitted this document for discussion as Draft D, and the changes are as follows. In the paragraph that starts on Page 3, Line 12, we -- if you go down to the bottom of the -- of the page, we have added on Line 19 the word "specific" after "recommended" and deleted the phrase at the bottom, the very last phrase on the page, on the proposed upgrades, did not increase the value of the property, so the sentence will read in all three instances, Capitol Police recommended specific security upgrades to the members' residences due to the continuing threats, period. On the next paragraph at the top of Page 4, on what are Lines 5-6, we are adding the word "non-structural" before security and deleting the phrase that did not increase the value of the members' homes, so that the sentence will read "therefore the Commission concluded use of campaign funds to pay for non-structural computer upgrades by the Capitol Police under the act of Commission regulations. We deleted the phrase do not increase the value of the members' homes on Line 14-15 and instead used the phrase as described in this opinion. And then we have added more specific description of exactly what we're talking about at the -- what is now the top of Page 5. And this is in keeping with the language that Commissioner Goodman recommended, specifically the Commission authorizes the use of campaign funds to pay for the installation or upgrade and monitoring costs of cameras, sensors, distress devices and similar non-structural security devices as well as locks in and around a members' residences. And we are taking out the sentence "this guidance is pros peck spiff unless otherwise allowed by previous advisory opinion. The normal boilerplate that is in this opinion I've been persuaded will cover us. It always says that, you know, all our opinions are prospective, but any person involved in any specific transaction or activity which is indistinguishable in all its material aspect from the transaction or activity with respect to which this advisory opinion is rendered may rely on this advisory opinion. Which is explicitly based on the information about the current heightened threat environment experienced by Members of Congress. So what we've done is we've made the kinds of improvements more specific, explained that they will be non-structural in terms of whether -- how people can rely on it, people can rely on this, should it get four votes, going forward people who in the past relied on past advisory opinions, which were based on specific threats to those individuals, you know, they would be covered if they were materially -- in a materially indistinguishable situation they would be covered by that. If somebody had relied on the three previous AOs and said, I also have experienced a specific threat and have, you know, made these changes in response to that and on the recommendation of the Sergeant at Arms they would be covered. Now, if somebody going back through time had just decided on their own to upgrade their security without that threat, they would not be covered by those previous AOs because they would not be in a materially indistinguishable situation, and I think, you know, the reality is that should a complaint be filed, the Commission will, of course, consider everything on a case-by-case basis. This is, as I've said, by its terms, limited to non-structural improvements based on the current threat environment, based on the recommendation of the Sergeant at Arms, and I think that is -- you know, I do think that will cabinet in sufficiently for the purposes that everyone understands to be in front of us today. So I'm satisfied with this result and prepared to move for approval of this document whenever it's deemed appropriate. >> STEVEN WALTHER: I have one question. What is the status of the situation in terms of the Senate? What kind of communications has there been and have they indicated anything about this process? >> PAUL IRVING: I have spoken to the Sergeant at Arms and he's aware of moving forward and endorses the items I'm proposing >> STEVEN WALTHER: And understands the way it's drafted the Senate will be included? >> I believe so, yes. >> STEVEN WALTHER: I think we have the language. I'm going to move my Draft B, I'm going to lose and support Draft D. So I would like to move -- I'll just move my own Draft. I move Draft B -- that we approve Draft B. All in favor? Me. All opposed? [ nos ] All in favor of Draft D -- we need a motion for Draft D? >> Because there's one more change that I forgot to put in the recommendation of counsel, and that is where we talk about the reporting, we're going to add the word "reporting" to make sure we're not amending the CFR through an AO. Which we could not do. We're talking about a red document that describes adequate purposes for reporting, so this is on Page 5 in the sentence that says the Commission will add residential security expenses to its list of purposes deemed adequate for campaign disbursements. We're going to add the word "reporting" before purposes. So to list of reporting purposes deemed adequate. And with that last amendment, I move approval of Draft D in response to the advisory opinion request of the Sergeant at Arms Paul D. Irving, which is -- which will be advisory opinion 2017-07. >> STEVEN WALTHER: Any questions? Comments? All in favor? Aye? >> Mr. Chairman, we need you to announce the vote on Draft B, on your motion, and then we can proceed to... >> STEVEN WALTHER: Okay, the vote was 1-4. I voted in favor and the rest of the commissioners voted against. I thought that was obvious. Ready to go? All in favor of voting for Draft D based on the most recent oral changes by Commissioner Weintraub say aye. [ ayes ] Opposed? None. It's unanimous. Thank you very much. I admire their ingenuity to come here and put us through the system and best of luck and -- >> Thank you very much, Mr. Chairman, and Commissioners, thank you very much. I appreciate it. I really do. >> STEVEN WALTHER: We'll take up Draft Advisory Opinion 2017-05, Great America PAC and Committee to Defend the President. Mr. Backer. >> DAN BACKER: Good afternoon. >> STEVEN WALTHER: Good afternoon. counsel. >> DAN BACKER: Thank you, Chairman. Agenda document 17-30A and 17-30B are draft responses to advisory opinion request submitted by Great America PAC and the Committee to Defend the President. The requester asked several questions regarding the application of the act and commission regulations to proposals to use Twitter handles and disclaimers on certain communications and maintain Twitter profiles without a disclaimer. Both drafts conclude that the Great America PAC may use its Twitter handle in lieu of full name and disclaimers, that the Committee to Defend the President may include Twitter handle along with full name as long as the disclaimers language makes clear that the committee is paying for the communication but that neither committee may use Twitter handles as an alternative to their permanent street address, telephone number, or World Wide Web address. The drafts differ in that Draft A concludes neither committee's profile page needs disclaimer while Draft B concludes they do. Draft B concludes requesters may not satisfy disclaimer requirement by including a graphic bearing the standard disclaimer. If such graphic is not available on certain mobile devices. We did not receive any comments on the request or Draft B and one comment on Draft A. I'm happy to answer any questions you may have >> STEVEN WALTHER: Thank you. Questions? Comments? >> I would just like to ask Mr. Backer's reaction to Drafts A and B. >> DAN BACKER: Thank you. To the extent of the drafts, the use of the Great America PAC in lieu of name, of course, we concur. To the extent that the drafts tend to agree on most other things, we're not going to argue that, but I want to raise a concern about the nature of the disclaimer. Disclaimers, of course, are an important and necessary component of the disclosure regime that we have, but the purpose of the URL or the name -- sorry, the address or the phone number is not really informational. It's communicative. And I would be concerned that Twitter is a much more effective means of engaging in communication than the URL or the phone number or address, and that we're looking almost at a form over substance in effecting the goal of the regulations here. The address goes on the disclaimer, so people can mail a letter. Not that anyone is going to show up at the office, hopefully. You have a phone number so they can call you. You have a URL so they can go to that website and communicate with this committee. And so the purpose isn't just, say, hey, here is a piece of information that is otherwise useless. It is really -- it exists only for the purpose of engaging or allowing the viewer, the reader, the listener, to engage with that political committee in some manner. In that context, Twitter is a vastly more effective means of communication than any of those three options combined. And so I realize the regulations say what the regulations say and that we -- our position would be this would be a more effective -- this would better fulfill the intent of the regulation. I understand the Commission doesn't see it that way, but I think going forward, it is elevating form over substance and really not getting at the goal of what that piece of information is there for. Beyond that, I wanted to -- where did I put that phone? -- I wanted to raise the issue of the whether or not we can see the disclaimers on certain -- on Twitter profiles using graphics if we're required to have them. So the concern I had was, if I go to Twitter right now and I pull up the Committee to Defend the President Twitter profile, there's a disclaimer on the graphic. It happens to be a standard graphic that is used a lot, and it's actually -- the text is 4% of the vertical height of the graphic. It is in the printed box and it is basically unreadable even to me looking at it from here, and my eyes are bad but not that bad. So my concern is that with respect to the -- different devices, different size devices, different operating systems on devices, they treat this differently. Our concern is we don't really know what device somebody is going to be using to look at a particular -- the Twitter page, the profile, and so it doesn't really make sense to exclude our -- if we have to have a disclaimer there, we want to be able to include it in that graphic and not have to try to measure it against something like 50 or 60 different devices and device sizes and operating systems. With that said, we also don't think that the profile requires a disclaimer or that the limited amount of permissible profile space that the 160 characters or text we have there should be used for the purposes of just the disclaimer. While these clients aren't using that space right now to engage in communication, they could. And going into that situation, losing 86 out of 160 charactering in order to create the disclaimer and vision in Draft B would be very limiting in the rest of their speech that they would be able to engage in in that very tiny space. Those are sort of the major comments. I did want to raise one other -- or somewhat random issues. The first in both drafts on -- and Draft A page 2 line one, the draft says -- and they assert they plan to make independent expenditures. I would point out both organizations have made significant independent expenditures this year and have done so just this week. So I don't know that -- I wanted to avoid any potential like, oh, hey, a hypothetical, these groups are very actively doing this. And then on page -- on Draft A, Page 8 Lines 11-12 there's a sentence, moreover a Twitter handle unlike domain name gives no information what type of organization it references, dot-com or org or dot-gov. Other than dot-gov any organizations can have the dot-comorg it wands. For example, if I go to Go Daddy and try to search for stupid regulations.gov it tells me I can't have that URL, but I can have the dot-com or dot-online and a long list of other HLDs. It happens to be factually untrue so I thought it would be better to strike that rather than have that in the language. >> LEE GOODMAN: Just a follow-up question. That was a lot to take in. >> DAN BACKER: Sorry >> LEE GOODMAN: Let's start with draft A. How does Draft A implicate these concerns that you addressed? I understand the specific Page 2, Line 1, and Page 8, 11-12 issues. How are your concerns that you've addressed broadly addressed in Draft A? >> DAN BACKER: We agree with the outcome of question one with respect to the name of the organization or the Twitter handle of the organization in lieu of the name because the Twitter handle is identical to the name absent the spacing. With respect to questions 2, while really -- I'm going to skip question 2 and go to 3, which is more about the use of the Twitter handle in lieu of the URL. So when we put out a communication that says, you know, vote for or against candidate X, paid for by Great America PAC, not represented by any candidate or candidate's committee, www.great America PAC.com, our approach is we're paying for this communication, in space or time or both, and the consumption of this space or this time is limited. We only have so much space and time to communicate. We're paying for it. We don't want to lose that piece of communication space, that URL, and if we have to lose that little piece of the communication, you know, even if it's one second out of 15 seconds, when we have $100,000 communication, this has real value to the organization with respect to its speech. The organization and especially the individuals who create the media content, who create TV ads, radio ads, all the different communications regularly yell at me over why do we have to have this disclaimer, it would be substantially beneficial to drive them to the Twitter handle. So@great America PAC not authorized by any candidate or candidate's committee is substantially better and better use of donor resources than paid for by @great America PAC, because it gives one or two seconds more of communication time, and at the same time it is a better mechanism of engaging people with our activities. Our experience is that people engage with this organization, online comment or do things there. Websites are essentially static because we have a Twitter profile that allows people to communicate. Both from effecting the goal of this informational disclaimer requirement, that is giving the recipient, the reader, listener, the hearer or viewer, rather, something oengage with us, Twitter is more effective and allow clients to effectively engage in communications and removes this incremental but some substantial cost in terms of the space and time they are paying to communicate their message in. >> LEE GOODMAN: Did you want to go through the other? I'm at a granular level trying to understand your answer to the answers proposed. You've been through one and three. >> DAN BACKER: Well, two is sort of getting to three, having the name of the organization and the Twitter handle would be sufficient. I think it was a lead into this, and we don't need the URL there. Obviously we could always put the Twitter handle in with the existing disclaimer. So we could always say, paid for by -- paid for by Committee to Defend the President, not authorized by any candidate or capped's committee, www.committee to Defend the President.com, that's about two seconds at my fast pace, @defend_trump No additional information in the box disclaimer. I see that regularly. We want to minimize the portion of the mandatory text. Hey, is this enough? And if so, can we not have -- can we have the Twitter completely remove the URL? In 4... so if we're driving people to our Twitter page, Twitter -- there's not a lot of space to communicate and we've got the profile picture, the header bar. We have 160 characters and can put the URL in there. According to -- I think it was Draft B itemize in the footnote, the disclaimer would be 160, which out of the 160 characters in the box. So, again, there is a limited amount of bandwidth in which to convey this communication. It's a space question. And while right now there's not a communication going on in that space that is -- that would be supplanted, if we're required to have the disclaimer there, then it would prevent the organization from engaging in speech on this platform in that tiny little sliver of space. I tend to agree, however, with Draft A that Twitter profiles don't require a disclaimer at all but to the extent that Draft B says that they do, we disagree, we would like to be able to use the graphic section that we showed and not have to worry about whether or not every individual device could read them. And that runs through questions 5 and I believe 6 of Draft A. >> Keep going? >> The principle difference in draft B is Twitter profiles require a disclaimer. We tend to follow -- as we laid down the advisory opinion request we think the history is that, no, they don't because of nature of the Twitter profile and the way it's used. The fact that we ultimately don't have control over the content because, for example, as some found out, you say stuff, you're gone. It's not our platform, we're just sitting there. We don't think disclaimer is required and to the extent it would be required it ought to be satisfied by the use of the graphic which frees up that potential 86 characters out of 160. So half the potential of communicative space. Again, with so many different platforms, it would be very hard for us to figure out how to construct the graphic appropriately to make it work. And I imagine there's probably even -- you know, I have -- whatever model this is, but there's older ones that may not properly render the graphic at all and we can't control the mechanics of that. We want to create something if we're required to have a disclaimer we want it least constructive to potential communication an not have to account for every conceivable scenario that could occur. >> LEE GOODMAN: Do I walk away -- do I understand that your principal concern with Draft A is the answer to number 3? >> DAN BACKER: I would say that would be our biggest concern with that draft, yes. We would encourage the Commission to reconsider that. It's answer to that, to elevate the substance over the form. >> LEE GOODMAN: Remind me of a fact here. Great America PAC and Committee to Defend the President, do they have street addresses? >> They do. >> LEE GOODMAN: Or P. O. Boxes >> DAN BACKER: They have street addresses. Committee to Defend the President uses 203 south union Alexandria, and Great America PAC uses 107 South Lee Street number I think 355, but the addresses are filed on their FCC forms. >> LEE GOODMAN: Do they have World Wide Web addresses? >> DAN BACKER: They do. Full names constitute web addresses, and Committee to Defend the President.com is a mouthful. >> LEE GOODMAN: Let me ask you, Mr. Chairman, if I can continue... >> STEVEN WALTHER: Yes. >> LEE GOODMAN: On one hand we've had disagreements on the Commission on what Twitter is, and I've tended to agree with your position that it is Twitter's platform, not yours. You control your World Wide Web address, that's yours. You control the content in it. Twitter is someone else's website controlled by the company, and you're there -- you're allowed to use it subject to their conditions, and some of those are substantive in content conditions. So on the one hand we're saying -- you're saying, so you afree with us that Twitter is not the website controlled by you. >> DAN BACKER: Correct. >> LEE GOODMAN: But you do want to use Twitter to identify you in your sort of like -- you're saying it is the equivalent of a World Wide Web address, so it looks like there you're adopting Twitter as your identifying address, to identify you. >> DAN BACKER: I would think of it as a channel. Because we intend to have the full address of the World Wide Web address on the Twitter page, and so it would be -- it's almost like going to www.nationbuilder.com/PAC X where it's somebody else's page but a mechanism to drive -- it's a channel, essentially. And it ultimately -- even if it by itself does not provide adequate communicative mechanism, I think Twitter is a much better communicative mechanism. It also links back to the ultimate web pain that would still exist. >> LEE GOODMAN: Once I land at your Twitter channel or feed, there I find your -- there I find your permanent street address, telephone number or World Wide Web address posted somewhere on there. >> DAN BACKER: The World Wide Web address, yes. >> LEE GOODMAN: So your concern carries on into the answer to number 4 as well on Draft A, which is the same issue. You cannot substitute a Twitter address for a URL address. >> DAN BACKER: Correct. >> LEE GOODMAN: Go back and explain to me one more time, Dan. >> DAN BACKER: Which part? >> LEE GOODMAN: Why a URL address in a disclaimer is more onerous than a Twitter address >> DAN BACKER: Sure, three factors. The first is that from the perspective of a quality of a communication, we have a very limited bandwidth, whether it takes space and time to communicate that message. The Twitter handle is a more effective part of the communication. It's better communicative, it's more communicative and fits better with branding and allows the organization to better engage. For example, @great America PAC not authorized by any candidate or candidate's committee without the URL is shorter, saving time, space, money, which means more of the rest of the content, even just the printed disclaimer, you know, it's only one line, but it's still -- that's one line less of speech. At the same time, it gives one piece of information instead of multiple pieces of information where we want people to engage with the organization. it is substantially more communicative, which is the goal and substance behind this regulation, it's not informational. It's communicative, and I think that's a more effective use of this limited -- of the limited space that we have. I can anecdotally tell you I've never had a -- of all the ads we approve and communications to make sure the disclaimers are correct, it is an endless source of frustration for the actual creators of content that we have to put this in there. I've never met one of them who didn't say, do we really have to do this? Can we just not do it? And obviously the answer is no, you have to do it, but it takes away the bandwidth and quality of the communication. It adds to the cost. And I don't think it's as effective as delivering the value that we want, this connection between the recipient of the communication and the maker of the communication. >> LEE GOODMAN: You're talking about online or all communications? >> DAN BACKER: I think all, whether it's TV, radio. >> LEE GOODMAN: Use Twitter instead of URL on all those. >> DAN BACKER: We encourage overly inclusive disclaimer from all clients and that way in the off chance somebody decides, hey, let's use this disclaimer here because the lawyer is not around right now and we need to get it done, we have an overinclusive disclaimer. Across the board we want to advise, this is what you use so we know it fits every scenario. Even if it might technically not be required in one particular place, if we can do it, we want to do it. >> LEE GOODMAN: On devices, which you mentioned, I understand the character limitation. We have a small items exemption that from time to time has been debated on the Commission for disclaimers on devices, but for television and print and direct mail, how is it that your communication is somehow impinged upon if you have to use the URL as opposed to a Twitter when -- so long as you provide the URL or permanent street address you could always add your Twitter handle as well. I mean, you're -- across media, this does not impinge upon space for communication across all media, does it? >> DAN BACKER: I would say that it does. First -- there's two different -- >> LEE GOODMAN: Hold on, I've got the challenge that. You send a direct mail piece, requires a disclaimer. The Commission insists on the plain language of its statute and regulations. It says, you got to use street address, telephone number or World Wide Web address and by the way if you want to add your Twitter handle somewhere you can, but you have unlimited space in a direct mail piece. Adding the URL address is not going to squeeze out any communicative content in a direct mail piece. >> DAN BACKER: Granted, but the quality of the communication can suffer because @www.committee to Defend the President.com is a long URL and people don't engage in the Internet the way they do now. Giving people @defend_trump conveys the entent of the organization and better means of communication. And given the option -- we want to channel them into the one. >> LEE GOODMAN: I get it, but -- I see, you want to channel people, I see, >> DAN BACKER: To the most effective form of communication. If we have to put both there, that's going to -- granted, it's a limited amount of space. It's much more an issue when talking about oral disclaimers or screen and print disclaimers. >> LEE GOODMAN: Screen and print I understand. I don't think we have fleshed out the potential application of the small items exemption, which has been a point of debate on the Commission. And I might, Mr. Chairman, want to one more time consider that issue, if we distinguish between media. But if you're looking at channeling as a practical matter, we could have you comply with our act, it seems to me, provide a street address, which doesn't really channel anybody anywhere in the cyber world, and you can always add your Twitter handle for the channel. The channeling only comes if you feel compelled to use your URL address. Then you say to me, ah, you're forcing me to channel people to my URL address when I prefer to channel them to my web presence at Twitter. My point is, for other media, such as print media, adding the Twitter as an add-on, there's no prohibition as to that, so how much -- I understand the space limitations on characters online, okay? But for other media, it doesn't seem to me we are -- we are eliminating the room for communicative content. >> DAN BACKER: It's not eliminating the room, but if the goal is to have a uniform model of communication so everyone receives the same disclaimer information so it's uniform across recipients and we want the Twitter handle there because it's most effective means of communication and we have some other, address or URL, now we have two different pieces. Which one does the recipient of the communication choose? Obviously we wanted them to use the one main communication model that is most likely to effect the communication. It doesn't squeeze out, you know, the 18 or 20 -- however many characters of ink used there. I agree it's not really taking up space but affects the quality of the communication and effectively engage with that argument gads isn't that an argument people have made about disclaimers all along, they somehow force us to speak in a certain way and they somehow-hoe we have a disclaimer... >> DAN BACKER: But the regulation does require it and an important part of the system we have to have disclaimers so people know who is speaking, and through the street address, phone number or URL, a mechanism to contact that speaker, in which I think the Twitter handle is optimal. There's also -- I think in terms of the clarity and ability for the non-lawyered-up political organizations have, a simpler rule is probably the better rule and being able to say "or your Twitter handle," you can use your Twitter handle here but not here or here adds a layer of complexity to these activities. As I'm sure you know, there's an explosion in the grassroots political speech in the small and mid dollar range over the last several years and a lot of people engaging in political activity who don't have lawyers and are reading the 2008 copy of the non-connected committee guide out there and not really sure what that requires of them. >> LEE GOODMAN: Mr. Chairman, with your indulgence... I apologize I didn't re-read your request for today's meeting. Was it clear in your request that you are asking about this use of Twitter versus URL in your disclaimer across all media of communication? >> DAN BACKER: I don't know that we specified it in that language, but I do -- we did ask to instead of the URL just use the Twitter handle. So I would say it would probably be implied if not implicit. >> LEE GOODMAN: It's just striking me now that there may be different results depending on your -- the media that you are using. And as to non-uniformity, there is a position on this Commission that there could be non-uniformity, i.e. in the sense that in print you have to have the full disclaimer and on a device it might be -- you might not have to have a disclaimer at all because it's a small item. And that's non-uniformity. So Mr. Chairman, I'll defer any other questions, but I want to to take more time with the permission of Mr. Backer. >> DAN BACKER: Happy to defer an outcome on this if that's helpful to the Commission. I don't think we're up against a time clock either. >> STEVEN WALTHER: I wouldn't mind having more time to consider it myself. >> Just one quick question. And I think I've taken a little extra time to look at this, probably not a bad idea. Even if one is sympathetic with the argument you're making, the problem we run into is the specificity of the statutory language, which it could have been written differently, and it's sometimes the problem when statue story language is written specifically in light of technology and available means of communication at the time, but it does say that for non-authorized communications it shall clearly state the name and permanent address, telephone number or World Wide Web address of the person who paid for the communication and state that the communication is not authorized by any candidate or candidates' committee. There's no catch-all or some equivalent signifier or designation. So in terms of the specificity of the statutory language, how does the Commission get out of that box and move beyond and start considering other pieces of information as meeting the commands of this language? >> DAN BACKER: The first thing that occurs to me is bit.ly, are you familiar with this? So there's'-it's link shortening. I can own www.committee to Defend the President.com. I can go to bit.ly and that's the whole URL, and enter that and they will give me a short URL. It will be 123 -- making this up, but 123456 bit.ly, if I put that in our disclaimer, that takes you to the URL and it would constitute an appropriate use of disclaimer, but no one would want to do that because it's meaningless gibberish, these short URLs. So the advance of technology has broadened what is the World Wide Web? When it was written in this context you didn't have Twitter. I don't think you had Facebook and a lot of this stuff. You just had message boards and discussion platforms and emails. And I think the Commission need not elevate the specificity of the language when at a time before any of this technology existed and became tremendously dominant in political communications process, in fact, really as a principal means of communication in a lot of industries and amongst people generally, I don't think you're bound to only look at it that way. It would be like -- I'm trying to think of a really good analogy and can't come up with one, but I think there are plenty of examples when this Commission has, in light of evolving technology has said, this may have been specific statutory language, but we see this inclusive of this language. In fact, the Commission just now said -- created a new descriptive category for appropriate reporting purposes for home security systems that would -- you know, that would have been outside the scope of statute, but it understood that, look, times have changed, we need to recognize that, and this is a reasonable understanding within the confines of the language. I think here as well, what is the World Wide Web has dramatically changed and I think it is -- the Commission has the ability to recognize that evolution and those changes within this context. >> I was just going to say if there is some additional time granted with this, I don't mind puzzling over this a little longer. >> STEVEN WALTHER: Mr. Goodman. >> LEE GOODMAN: While we have you and can discuss this in public, I guess the concern I have following up on the statutory language that Commissioner Petersen just mentioned is -- by the way, I'm sympathetic to the result that you're trying to get at, but we are bound by our statutory language, okay? What you're asking for is for us to re-define what URLs are on the World Wide Web, so that political committees can say, go to someone else's website, Twitter's, to find out more about me. I mean, because you like our answers -- excuse me, you like the proposed answers in Draft A to the subsequent questions that conclude Twitter is not your own website and therefore under strict reading of our regulations you don't have to post a disclaimer there. You like that, and I think you accept our theory for that, which is it's not your website. You don't control it. It's Twitter's website, okay? But now you're asking us to expand the notion of what a URL is on the World Wide Web to somebody else's website, which is Twitter's website. Now, maybe we should recognize the developments of technologies and change our regulation that way, but it strikes me in the meantime we've got a statute that says your website identifies you and therefore in the interest of disclaimers and informing people who is speaking, you need to direct them to your address or your URL. That is the web presence that you own and control. So react to that what I'm seeing is a bit of inconsistency in asking us to broaden the definition of a URL as your identifier. >> DAN BACKER: So if a bit.ly would be an acceptable mechanism as a URL, that is not that distinct from Twitter other than there's static intermediary versus channel. I don't own it. They own it. They can change at any point and not tell me about it. If a bit.ly would work and many would say it could, then really Twitter is a static intermediary version of that. And a thought popped in my head when you were describing this. Shoot. With respect to the Twitter. Darn it canning you know, you... >> LEE GOODMAN: I guess I have another question, so maybe it will come to you. It happens to me all the time. My wife is here today and she'll tell you I have early onset dementia. Let me ask you. I just want to test a theory with you. What if the answer is, through all traditional media, non-digital, including your own website, you got to use the permanent street address, telephone number or World Wide Web address in the box disclaimer, traditional box disclaimer, because our statute says so. You can always add in your preferred in that box or in that box, you can add in "learn more about us at..." and then post to channel people to your Twitter account rather than your main URL, if you're interested in channel people there, okay? And then as for device -- for electronic and small electronic communications, it seems to me that perhaps no disclaimer is required under the small items exemption. >> DAN BACKER: With the first part of that, the "learn more about us here," in my conversation with the professional communicators who create all these communications they'll say that you want to have -- if you want to have effective you have to have one message, one ask. You don't want to diverge from that. And every sort of interruption or hiccup you put in their way is going to cost you some number of responses. And I think -- I once heard that for every additional click you have to do for a place it's 3% loss rate. So having information that is not absolutely essential, that is neither part of the message or essential to that message is distracting from the core of that message. I get we are required to have this disclaimer. >> LEE GOODMAN: And the problem you're indicating is inherent in having to have a disclaimer generally. If I'm talking to the communications specialist I might say, use the street address, which isn't going to channel anybody anywhere, and then use -- or the phone number -- >> DAN BACKER: We want them to communicate. We don't want them to not -- >> LEE GOODMAN: Add the Twitter feed to be the one place people can communicate with us online. >> DAN BACKER: This gets back to the idea that popped in my head before and you sort of mentioned again. That the purpose of the disclaimer is identify the speaker, and we i.e., and the speaker is identify by the "paid for by" portion of the disclaimer. The URL or phone number or address is the communicative part of it. And here is how you get ahold of us. Here is who we are and here is how you can get ahold of us. And the Committee to Defend the President's case, those are sort of two separate pieces. In Great America PAC's case, that's one piece of messaging. The identity is not what we're challenging. Every communicator would love to not put anything that didn't communicate the message. We have to identify the speaker, but identifying the speaker and independent communication not authorized by a candidate, and here is how you get ahold of us, the least -- having one option as uniform as possible is the best. And having one option rather than giving people multiple places to go is the best for the quality of the communication and to some limited extent depending on media, the time and space component involved, it also drives all the communications to one place, which is ultimately better. If I only have to pick up one response channel versus multiple ones, that's generally good in the communicative space and achieves the objective of that component of the disclaimer requirement, which is not identity, it's how you get ahold of me. It's the differentiation -- we're not arguing you have to identify yourself. It's who you have to. Now, here is the part I'll shoot myself a little in the foot, unfortunately... >> I would advise you as counsel not to do that. >> DAN BACKER: Problem with small items differentiation, I can differentiate -- if I send you an email and you click and whether you're on a mobile device or desktop, I can control what page you have, and that allows -- that might address the small items problem. I can't do that with Twitter. You're going to one Twitter. Twitter doesn't let me change your experience based on your platform. I can tell you that the majority -- the substantial and growing majority of utilization of political communications across all the different groups that I see is mobile. More and more people -- it's already the majority methodology, desktops, laptops are going away. It's devices, cell phones, iPhones and tablets are substantially predominating and grows every single year by leaps and bounds. Unfortunately, there's -- well, fortunately, there's a lot of diversity in that marketplace. So our approach exemption is really to the extent that we have the graphic there. So not that we want to be exempt infrared the disclaimer. If we have to have a disclaimer we don't want to be exempted from it -- rather, if we have to have a disclaimer, we want to be able to do it in a graphic regardless whether it would apply for small items. Even as a practical matter, I can look at this thing and I can't read what that says right now on our page. It's just -- it's a little bit too much -- or rather too small. It's complex. >> LEE GOODMAN: I appreciate the observations an I would like to consider what Mr. Backer's points are a little bit longer. I will just indicate this. Disclaimers for 40 years or more now, we've heard the arguments that they distort people's message. There's for speech, it takes up space, takes up space in radio ads. I think it's an open question about where a disclaimer might take up the entire communicative space of a small item or a radio ad that might be a ten-second radio ad and where you even have space where it crowds out the whole message. I don't know that we're dealing with that here. But I would like a little bit more time to consider the points that he has made. And also the distinctions between the types of communications committees may be considering because I think there may be other regulatory implications I hadn't thought of regarding the required disclaimer, for example, in small digital print. >> STEVEN WALTHER: Fair enough. Any objections, Commissioner Weintraub? >> ELLEN WEINTRAUB: I just want to -- we're going to be coming back to this issue, I can tell. I just want to state for the record that I -- Commissioner Goodman is absolutely correct. We are bound by the statute to have certain disclaimers. I think we could potentially consider in a rulemaking context whether we can re-interpret some of those requirements, I'm not sure if we can, if we have that authority in this digital environment, or whether we want to make legislative recommendations, and it might be interesting even if we were talking about legislative recommendations to seek public comment, perhaps have a hearing. This could be a very interesting topic. However, we have statutes and rules on the books and those are the ones that we have to apply. My plan is you know, we're not going to vote today. My current plan is to support Draft B. The major difference goes to whether a Twitter platform is your own web page or not. Unless you're Mark Zuckerberg, you're always on somebody else's platform, whether it's Facebook or Twitter or whatever, I think that really these platforms -- particularly, you know, Twitter, where people can have handles that are completely obscure. You get no way of nothing who these people are and they have these funny animal pictures as their avatars and you just don't know. I think it's particularly important to have some type of disclaimer requirement, which is completely feasible. It's completely feasible for these requesters. That's why we did the character count. You know, yes, in a hypothetical world where you had some other client or this client decided to change their current Twitter profile page, you might raise -- you might have fewer characters, but you come to us with a specific request and we interpret it under the facts that are given to us, which includes the status of your current platform. profile page. I think it's not terriblely onerous and that's sort of where I'm going with that and I don't think I need to say much else at this point since we're all going to come back to it. >> STEVEN WALTHER: Mr. Backer, thinking further for today >> DAN BACKER: I would note that the Internet has changed the nature of communings and really all communications, and that Twitter is an incredibly powerful platform we engage in political debate. And while I've been sitting here, Michael in the back tweeted Dan Backer of @great America PAC arguing using Twitter handle would save space enable more speech/content. People use Twitter to engage in political discussion which we ought to encourage rather than not. And I hope he retweets that. >> STEVEN WALTHER: Fair enough. We'll continue this at some other time. How about an hour and a half and come back at 3:00 or 2:30? 2:30 to 4:00? Fair enough. Give us an hour and a half in the afternoonem. . . . . . . . >> EMILY (CART captioner): Standing by. >> We'll begin this morning. The next item is proposed, volunteer mail exemption. I was asked by the vice chair to agree to her draft, and not surprisingly I said maybe. I should say it's been a while since we have been on time.Ed see if we can't begin to get ahead way on other things. >> I'm happy to work with you. Thank you for your willingness to do so. I was going to talk about this for a little bit longer but I'll truncate my remarks just to say that we had an open audit hearing a few weeks ago of the Colorado Republican committee. Once again we're reminded of the fact that the public and our own lawyers and auditors told news a public session they really don't even know what standards to apply to the volunteer mail exemption. It's causing a lot of concern and wasted effort, time on both the people who work on the audit here in the division in OGC and also people who are trying to implemented this exempts in the state parties. We have six audits right now in the building that deal with this issue. They're both Republican committees and Democrat committees and I'm hoping we can resolve this soon so we don't have to again waste everybody's time and it's an issue we should be able to come up with an agreement on. Thank you for your willingness to work together and we'll go from there. >> I pointed out the applicable word on her part is give. >> Got it. >> Got it. The next matter is proposed interim enforcement -- what am I doing? Discussion of commission's response to alleged foreign interference in American elections. This is a matter that's continued from a previous matter. It's something that Commissioner Weintraub has -- various issues raised from he cannily and sometimes with a loud voice and has gained a lot of attention, and this should provide for an interesting conversation. I do want to say this. A number of the things that are subject to some of the things that I read, and given the situation that exists in this country right now with respect to a number of these issues, given that we're asked to deal with matters before us, I am hoping we can keep our conversation sufficiently distant from any contention we've got any particularly predilection towards one versus another or guilt or innocence or right or wrong but mostly just to go forward on discussions of some of these issues as best we can. My thought would be -- there's six items in discussing it with Commissioner Weintraub. What I'd like to do is take each one separately and have a separate discussion on that within a reasonable period of time. Not trying to reach agreement necessarily but to see where we might find some common ground or basis for movement, that kind of thing. I want to commend her for the time she's put in all this. It's always good to get rested off our pedestal and this is certainly helping us to do that. There are a couple things I'd like to ask first to address and that -- let me just go ahead. Of the 61 is provide public assurances on FEC data integrity. I say that because we have since that last meeting, amongst ourselves, learned a lot about where we are and where we have come from and where we want to go and that kind of thing. So I just invite Commissioner Weintraub to address what she sees at this point after some of the new information we have had. >> Thank you, Mr. Chairman. I think that is an excellent place to start because we've already made some progress on that front, and I very much appreciate that. There isn't a lot we can say publicly about it at this point, but I do want to say that we have already received one briefing from our staff on where we stand vis-à-vis IT security and there is an effort underway to draft something we could share with the public. Obviously there are aspects of our IT security that we cannot -- it would not be prudent for us to share with the public, but I do think there is something we can say on this and we're working on it and I very much appreciate that. As far as I know everybody's pretty much on board, both with our -- assuring ourselves that we're in a good place vis-à-vis IT security and also where our trying to find a way of framing the issue that we could share with the public. >> There's the rub especially when it comes to security issues. Thank you very much and that did prompt us to take a good look where we are and we learned from that request. There's another one I would ask to maybe take a look at, that's to examine the commission's enforcement function and see if you have any thoughts, you want to start a conversation on a topic? No. 2? >> Thank you, Mr. Chairman. I would like to sort of frame this because there is some overall comments that will apply really with respect to all of this. I think this is a great opportunity for the commission to take on an issue that is of great concern to the public. I thought it was great this morning, I appreciate those of you who have hung in here and come back after lunch and are still here with us. We had a long meeting this morning and we managed to resolve our differences on at least one matter that, you know, people came into the room, they weren't in the same place, but we worked hard on it and we came to a unanimous conclusion that I think was a good result and I think that's a great model and I hope that we can continue work together, and I want to be very clear that these issues that I'm talking about are all -- I want to discuss them in a prospective manner. I'm worried about the 2018 election. Nothing that would come of any of these proposals would affect anyone who did or didn't do anything in the 2016 election. We're talking about rulemakings, we're talking about other paths forward that would all be prospective, and my concern is that given everything we have learned already and continue to learn and I think this is not a partisan issue. Nicky Haley, the ambassador to the UN, said on July 8th, everybody knows that they're not just meddling in the United States election; they're doing this across multiple con covenants and in a way they're trying to cause chaos within the countries. John McChain also on July 9th on face the nation said that the Russian president Vladimir Putin got away with trying to change the results of the 2016 -- trying to change. Not saying he did change. The 2016U.S. presidential election. He said we know that Russia tried to change the outcome of our election last November and they did not succeed but there was really sophisticated attempts to do so and in his words so far they have not paid a single price for that. We're not talking about -- >> Let me take a moment. This is precisely the concern I have about moving even quotes about people that in theory could be involved in our enforcement procedure and I think if it was a way to avoid having having to do that we can still cover the same ground. I'm concerned about that. Counselor I don't know what your -- >> I appreciate that, Mr. Chairman, and I will bear that in mind. The point I was trying to make is that this does not have to be and should not be a partisan issue, that there are Republicans as well as democrats who are concerned about -- >> And independence. And no doubt will I be containers and Green Party members and other folks concerned about what has happened and what may happen in the future and I think it's really important for us to try to grapple with some of these issues, as I said on a prospective basis so we don't find ourselves, we're only 16 months out from the next election. It is not that far away. Within a few months things are going to be getting hot and heavy for the 2018 election. And I really don't want us to find ourselves two years from now looking back and saying, well, despite everything that we read in the newspaper we did not -- we decided to delay taking any pro active action and find ourselves facing a new round of alsos coming out of the 2018 election. That's what I would like us to work towards trying to avoid taking whatever steps we can to try and address whatever issues are out there or we can foresee and to close any loopholes we know about or we can find out about. And I think that the key first step really is information gathering. This is certainly an issue in which the government should be all on the same page and all working towards the same goal. There are obviously obviously any number of investigations going on and there's no need for us to recreate the wheel. I would like to see us request briefings, both in public and if need be in private about what other folks in government are learning so we can inform ourselves and be in the best position to assess whether there are steps that we could take to tighten our rules to ward off future problems and I think I would love to see our legal staff meet with some of the career prosecutors over the Justice Department who work on putting together chases, again, on a prospective basis. Not talking about anything that -- I think we need to inform ourselves to the best of our abilities about what has already happened so we can put ourselves in the best position to examine our prospective activity. So I would like to see our lawyers talk to prosecutors and find out whether there are aspects of our rules that they think it would behoove us to change that would make their jobs easier going forward. Again, none of that would affect anybody who's already engaged in any conduct because we are -- the rulemakings are always prospective. So I would like to see us seek out that information and if need be, if we need to get security clearances in order to receive that information, then I think we should seek that out. To the best of my knowledge and actually I'm pretty sure about this, we currently have nobody on staff who has a security clearance. I think that would be an excellent thing to add to enforcement toolbox. >> If you did, who would the person talk to? >> Which person? >> The security clearance and they can't talk to anybody and there's -- I'm just thinking let's get realistic here. >> I think we probably need to have more than one person, but, you know, we might want to have a small number of people in our office of general council get security clearances so if there were matters to be presentedded to us that required that level of security in order to find out what happened, we would have people on board who could handle that. So I think that's -- that is a key element of our enforcement function that I would like to see us pursue and I think commissioners might need to get security clearances if we wanted to get the kind of briefings that I would hope that we could get, although I think there is always probably some public information that we could avail ourselves of, ask people from treasury to better inform us about how to their knowledge foreign governments, nationals move money around. Well aware in this country people have nice organized banking system and, you know, when this has come up when I've talked to people from other countries that we're able to audit our political parties and our political committees because pretty much all financial transactions done through banks and with credit cards or through electronic transfers and these things are all traceable, that isn't the way every other country is organized. So I think, you know, it would probably benefit us to get more information about that. I would like to see us revisit some of the rule making proposals that I have previously suggested. I'm not going to rehash all of them but the one that I would most like to see us revisit, sort of thenary west approach. I'm happy to augment this with any other suggestions that anybody else has, but I think given the ingenuity that other countries may be employing and trying to influence our elections, I think it would behoove us to try and adopt some kind of a certification procedure where people who are spending money on the kind of political activity that requires disclosure to us would have to certify they were not receiving their money to the extent they aren't already disclosing all of their donors, some of the political activity that gets disclosed to us is not from people who disclose all their donors. I would like to see certifications that those entities are not getting their money from entities that are owned or controlled by foreign governments. You know, we can put aside for another day, because I understand they're very controversial some of the corporate proposals that I made that look at percentage of ownership and how many foreign nationals are on the board. I would love to address them, but I get it if people don't want to do that, but I would really love to know if, you know, based on all of the new information we have learned in the last seven months since I last brought up my rule making proposals if there would be any interest at all in trying to do a rule making that would look into whether that kind of a certification could be adopted because I just don't know why, regardless of whether an entity is incorporated in this country and potentially run or managed by a U.S. citizen, I think if it is owned or controlled by a foreign government, put aside other foreign nationals. Let's just focus on foreign governments because that is the thing that I think has most people most people concerned right now, I would like to see whether maybe there's been any change of heart as to whether that might be a good idea to pursue through a rule making. Again, as we inform ourselves through all of these mechanisms, I think we may find there are things we can't do through rulemakings that may require statstry change. Look forward to working with my colleagues on potential legislative recommendations in that regard. I would encourage, I've heard from so many people in the public and so appreciate all of the e-mails and tweets and other contacts I've had from people who have been urging us to take some action in this regard if there are people out there who have ideas about particular rulemakings or legislative recommendations or other steps they would like to see the agencies take, I welcome those suggestions. You know, feel free to file your very own petition for rule making. Even if you have less developed ideas and just some thoughts, I really am so pleased to hear from so many people and continue to welcome that feedback. I apologize, Mr. Chairman, I know you wanted to do this issue by issue but since there were sort of themes that ran through the entire topic I thought it would be easier to kind of talk about it -- >> I understand. Well, I think going back to that issue, unless you want to proceed differently, I think we should try and cover those six points since at least we can say we did look at those and they got feedback a little more particularity. When you talk about revised rule making, basically talking about certification at this point? >> That's what I'm asking for at this point. As I said, I've put any number of suggestions out there, as have you, Mr. Chairman, over the years, on how we might better address the potential for foreign money to come in through the corporate structure. And while I'm happy to consider any or all of them, I thought if I just kind of focused in on what I think is thenary west proposal and in light of -- I guess it's a question from my colleagues. I know the last time I proposed it there were not four votes for it so I just -- in light of everything we have learned in the last seven months, thought I would just ask again if there is any increased interest in addressing that issue or anything similar to it. >> Commissioner Goodman? >> >> I took that as a question. So let me answer a question with a question. The last time I proposed a certification commission for the commission it couldn't garner four votes. Has there been a change of opinion on the certification mechanism that I proposed and it died by three, three votes twice? >> What I propose we put them both out as we frequently do in the rule making context, we could put out alternative proposals. >> How would yours alter from mine? >> My proposal is that -- it's not the document I have right at my fingertips right now, is we would require a certification from political suspenders that they did not get money from a company, any entity regardless of whether it is incorporated in this country, could be a domesticd subsidiary, could have a nominal leader who is an American citizen, but if that entity is owned or controlled from foreign government, again, focusing just on foreign governments at the moment, we would require a certification from political suspenders that they were not accepting money from those sources and that is the difference. >> Certification you're suggesting -- by the way, I understood your prior proposals to be much broader than that. >> I know. I'm trying to narrow it down. >> Now I'm trying to understand because I haven't seen a narrowed version in writing. Just so I understand what we're at least discussing, is your proposal that anyone's, for example, a regulated political expenditure or contribution to a super PAC at the time of making that expenditure or contribution would have to certify none of the funds that I am spending were received by a foreign national -- received from a foreign national? Is that the certification? Because that sounds very close to ours. >> No, it would go beyond that. It would -- that too, but also that none of the funds were coming from any entity that is owned or controlled by a foreign government. Now, if you believe that is already covered, you know, maybe we can do this in an interpretive ruling. Maybe it doesn't require -- well, no, because I want the certification and that would require an additional rule making. >> And are you talking about wholly owned by a foreign government or would any percentage of share hold ownership, such as a Norwegian sovereign fund be covered as well? Norwegian sovereign fund, if the sovereign fund of Norway owned 4 percent of an American public company, publicly traded company, what would the certification be in that case? >> Owned or controlled. And, you know, we would -- >> Partial ownership a 4 percent of a company stock count? >> Well, I think that's something we would flesh out in a rule making but that's not actually what I'm -- I'm not pushing for that. >> Okay. I'm trying to understand. You asked us a question. I'm trying to -- >> Well, when I get into the percentages then people get nervous. You know, we could start with a hundred percent, wholly owned. >> Mm-hmm. >> And then we could consider, you know, 90 percent, 75 percent, 50 percent. I'm happy to consider any alternatives. I'm willing to, as you know, in previous proposals I've looked at percentages as low as 5 percent. I'm willing to, you know, stick with 50 percent and above. How about that? Try to narrow it down to a place where I think we could make a little progress and, you know, would not cover the world. >> And how would you square that definition of -- what you're essentially doing would be interpreting foreign national because the statutory prohibition we have is that a foreign national cannot make a contribution or expenditure in connection with an American election. >> Directly or indirectly, yes. When you -- you are reinterpreting the scope of foreign nationals to prohibit, I take it your proposal would be to then prohibit any American company that has 50 percent ownership by a foreign government from making -- funding American electoral expenditures? That's what I -- >> I would like to put that out for -- >> Could be 50 percent, could be a hundred percent? You're flexible on where we draw that line? Okay. >> That is a rule making process. It's a line drawing exercise. >> Now, let me ask you: How do you square that interpretation, that reinterpretation of foreign national to a percent ownership basis with the definition of foreign principle in the foreign agent's registration act? >> It's -- it would address the definition of owner control. We would be defining what it means to own or control by a foreign government. >> Yes, but what you're still doing owned or controlled by foreign national. The prohibition is as to foreign nationals and we have a definition of what foreign national is and nowhere in our law our Feca interprets foreign national to be coextensive with the definition of foreign principle in the foreign agent's registration act. The foreign agents registration act nowhere defines foreign principle according to the percentage ownership of the American corporation: So I'm asking, because it could be a nonstarter just as a legal principle that -- but it might. It might form of basis of a legislative recommendation. That perhaps Congress should reconsider the definition of foreign principle under the FERA. I'm asking how do I square -- by the way, we know Congress has the ability to define corporations and to restrict their activities according to percentage ownership because Congress has done so in other statutes indeed in the foreign agents registration act Congress defined foreign agents to in some cases include press entities that have over 20 percent foreign ownership. Even in the registration act itself Congress knows how to draw percentage opens to draw distinctions between foreign agents and principles versus domestic companies. I guess I just -- I can say that there is a sympathetic ring to what you say about 100 percent foreign owned. I'm not sure it's permitted by the statute. So I will agree here at the table publicly to investigate this issue with you further. I have looked at this previously. And I keep running into the definition of foreign principle in the foreign agents registration act. So in the meantime, two points. Three commissioners have vote food arrest certification mechanism. Within the grain of our current statute and definitions and the body of law that has been created defining what a foreign national is and that conditions under which is a U.S. company that may be publicly traded under which it can spend money in American politics and that proposal still stands as a mechanism to shore up the risk. Bob Lynn delete hard wrote about this not long ago at Covington and Burling. He called it a constructive proposal given the risk some people might be cheating the existing current laws. So my offer to look at that still stands as well. And I extend that to the other side of the table. But more broadly. The circumstances raised in your memo, and that's how for counsel's sake I will try to refer to these, do not implicate the misuse of American companies to make unlawful contributions or expenditures in the form of contributions through American corporate entities. The funneling of money. We saw that -- seen that in numerous cases. Commission has a long history of enforcing the foreign nationals who tried to funnel money through corporate entities, including LLCs, into the United States, certainly in the context before Citizens United when corporations could give at the state and local level as well as the soft money accounts of the parties. So the commission has a whole body of law and a track record of detecting and enforcing the Ms. Use of corporate entities in the United States where foreign nationals tried to put money through them into American politics. Is there's a list of at least nearly a dozen cases, including the 1996 cases involving the democratic national committee. So we know we have a track record of enforcing that in the corporate. But what we are reading about in your memo today and what we're reading about in the press at large is a very different form of participation in American politics. Don't have to talk about any particular country -- what your memo implicates and what we're reading about is criminal hacking of American computers. And our Department of Justice has been indicting foreign people on foreign soil for hacking into American computer systems in many cases. For many years now. There are laws against hacking. I don't know how we get into the hacking of databases in the United States for political objectives. And then dumping materials on popular websites that are hosted in foreign countries but accessible by American citizens. I don't know how we get from that current issue, which is the subject of your memo, to just addressing the misuse of the corporate entity in the United States as the solution to the current issues raised in your memo and that we're reading about. So. Let me address more broadly the issues raised in your memo are quite important. >> I think everybody acknowledges we don't need Tweet storms to impress upon us the importance of the issues before us and. But we do have a law enforcement mechanism for addressing the issues raised in your memo, and for those purposes I do agree with you that we need to do more fact finding before we undertake to respond to the issues raised in your matter as a policy matter, even prospectively. I think we need to do more fact finding, and there are at least a dozen committees of both houses of Congress and other sister agencies of ours who are performing either investigations or fact findings into the issues raised in your memo right now and I agree with you, we ought to have lines of communication open, particularly with our sister agencies. I take that as a highly constructive proposal and I think while I don't speak for all my colleagues, I don't think there's any resistance to opening up lines of communication with other agencies. Where I think we may disagree is I believe this should be done through the ordinary mechanisms and procedures we have in our enforcement process. We have a memorandum of understanding with the Department of Justice. We have a track record of communication. This is exactly -- if you look at the record of the 1996D and C scandal involving Chinese money coming into the United States, there are many written communications and there were many meetings in the enforcement context, information sharing between the Department of Justice and this agency. When these types of issues come up, I think the enforcement mechanisms we have in place are well \trod\ready to, tested, and they protect the information security we're talking about, clearances, for example. I think other agencies are far more likely to deal with this agency if we handle them in a prudent, or Prudential manner in our enforcement way, rather than suggesting that we're going to be holding public hearings and we want public briefings by them on the facts they're finding out, or that, you know, we're here with an MSNBC news crew in tow. So I think we need to handle this -- >> News crew here? I must have missed that. >> Or that we have all the FEC accounts that Tweet this information out. I think we can handle these issues that -- these approaches that you discuss in the context of our normal enforcement procedures and mechanisms. We are, you know, at bottom a law enforcement agency and the issues raised in your memo fundamentally call upon us to respond in a very responsible and Prudential way to them. And as for moving from that to prospective policymaking, I think we need to do more fact finding, as you said, and we don't need to recreate that wheel, to do all that ourselves but we need to continue the information gathering. Now, I personally have been reading -- I've read the intelligence report that's a public report that was requested by President Obama and issued in Jan and I have read other reports issued by the Department of Homeland Security and I've even read other documents and reports by the center for strategic international studies. So all of us, yes, should continue to inform what we do prospectively but I think much of that, if you want it to be tailored to the -- to any demonstrated threats we currently face in the world, I think we ought to do significant fact finding in our enforcement context to do that. I think we also need to acknowledge going into this the complexity of issues we face in a modern technological world where American citizens and journalists have at their fingertips to bring to bear their own opinions foreign material posted by foreign sources on websites, whether that be social media websites, whether that be Wikileaks, because in a world of ubiquitous information where every American has access to foreign information, wherever it is posted, including foreign press accounts getting at the issues raised in your memo are going to be far more complicated than just requiring certification of the use of American corporate resources. And if we are going to be responsive to the issues raised in your memorandum, I think the issues raised on how influence can be brought to bear on the public opinion of American citizens, hold aside hacking of voter databases or anything like that which is outside our jurisdiction, these are going to be very complicated issues and they are also going to complicate the First Amendment rights of American citizens to access that information. We just had a supreme court decision this month out of North Carolina where the supreme court said citizens have a First Amendment right not just to speak online but to access information online. And this was a nine-zero opinion with a very broad opinion written by five justices. So before we leap into this, I think we should mind, you know -- I understand the excitement that we're seeing in the press. I think we need to group as a law enforcement agency primarily and then find where there may be holes after all of that fact finding is done. There are many historical examples of overreaction by government to foreign threats in American politics, and you mentioned I wouldn't want to end up 18 months from now saying we didn't do everything possible we could do, we would be remorseful if that happened. By the same token, I don't want to overreact and 18 months from now or five years from now look back and say we overreacted, we acted prematurely without all of the facts, without considering all the constitutional \complication\implications for American citizens of what we ask. We rushed out, for example, and undertook a rule making to diminish the First Amendment rights of American companies and shareholders or American labor unions and American members because there might be some other interforeign national shareholders or members of the labor unions. You know this is highly precedented in American history. At times of concerns over national security there's been an age old debate of a conflict between American liberty versus American security. And you can look at the alien SED decision acts, 1797, where there was an overreaction to concern about -- in a time of war with France about the influence of the Jacobians in American political thinking. There was an overreaction in the 1950s where there was concern about Soviet influence in American association in politics, an overreaction with the Smith act and subpoenas by the McCarthy committees. I just -- I think we just need to act soberly, deliberatetively, and we have enforcement mechanisms to do that. So I just want to be sure that we have calmer times prevail in our thinking here. As far as responding to specific proposals I think what we can do, first, as I mentioned, I think our best mechanism for doing our fact finding on these issues will be our enforcement procedures. There they are well \trod\ready to and a lot of footprints on how to do that you mentioned opening lines of communication and I agree. I think we should have open lines with sister agencies especially where issues that may come before us overlap with issues that may come before other agencies. >> Which ones are you thinking when you say that besides the DOJ? >> Department of Justice -- >> Besides that? >> You mentioned FENSEN. For communicating about common issues with the Department of Justice. We've done it with the IRS. We have those mechanisms that preserve confidentiality of information while we proceed. I think also that this agency should offer up its expertise to our sister agencies. >> Absolutely. >> to the extent other agencies might address FEC A issues. I think we ought to offer our general council's expertise to them to the extent such advice is desired. You mentioned fact gathering and not recreating the wheel. That's on my list as well. It was on yours. Credit to you. But, yes, we need to monitor. There are over a dozen other investigations going on. Some will render public reports about various issues and will have bearing and provider factual predicates for prospective legislative recommendations and rulemakings. So I think we ought to have a formal process here of collecting -- monitoring and collecting the reports and findings of other agencies, including congressional committees. And that those should be used to inform regulatory and legislative proposals. We'd mentioned the FEC's IT security. It's not a secrete. We've admitted, it's been widely reported our IT was hacked by a foreign source in 2013. And we have redoubled our efforts and spent money to improve and strengthen our IT security. Those efforts are still underway. And Mr. Palmer, you have done great work in that and I think you'll acknowledge the commission has given you the resources to do that. You mentioned making sure we have the resources in house. I agree with you, and I think we -- as we hire new attorneys we may want to figure in to the qualifications of new attorneys we hire gaps that we may have in knowledge of these issues such as, you know, we might want to look for people who have work in other fields. We have hired people from Department of Justice. We have heard people from congressional ethics offices and those issues help us triage issues that come before us. I think that's a constructive suggestion we should look at the set of skills we have in our Office of General Counsel and whether they cover knowledge and financial money, those types of issues, cyber warfare and computer crimes, make sure we have those skill sets inside our agency. I think it also always behooves us as an agency to ensure -- you mentioned security clearances here. I don't know. Just something we'll have to consider. I mean, I just don't know practically what we would do and as this chair mentioned, whether all commissioners would have to get those security clearances as head of the agency that's going to be receiving. We ought to investigate what it would entail, if we're going to do that. I think we need to redouble our commitment here to ensure we aren't leaking, that we are a trusted agency, and that we aren't leaking documents and other things. So I think we need to redouble our efforts to make sure we have those types of understandings and commitments in place here as an agency: So I think all of those are -- that you mentioned, I believe there is unanimity in those. And just in looking in things that are not in your memo, and just contemplating the complexity of this issue, okay, I think we need to be mindful of the degree of intersection with foreign nationals in our daily lives in politics. So if you look at news reports just from this last election cycle, these matters as far as I know are not before us, nor am I making any accusations. I raised them just to illuminate the complexity that we face, but here's a Hill article where then candidate Clinton said she was having conversations with foreign leaders about obtaining their endorsements in the presidential election and would marshal those to show she would be a better leader than Donald Trump. There are news articles where former Mexican president Vincente Fox said he is a meeting with speakerpa lowsy to encourage Mexican Americans to vote for the democrats and not Republicans, if you look at Vincente Fox Twitter feed, he Tweeted out hundreds of messages, including there may have been some republications in favor of one party and against another from Mexico. And the list goes on. The French president endorsed one candidate and it was published in a French publication that all Americans have access to. And so I think we have to consider all of the sense activities that we face and the complexities of this issue as we undertake this issue. Again, Mr. Chairman, I believe that the enforcement mechanisms and procedures we have in place are the best path for us to take. Thank you. >> Commissioner Weintraub. >> Thank you, Mr. Chairman. Thank you Commissioner Goodman. You have spoken at great length. I think you spoke longer than I did, so I -- there's a lot to respond to there. It sounds to me like what you are proposing is, well, we just should go along and do what we have been doing, follow our, as you call, tried and true enforcement mechanisms, wait for public reports to be issued, and what I am suggesting is that I think under the current circumstances we need to up our game and not just follow the tried and true. Frankly, there's been a lot of resistance in recent years to our having much communication with the Department of Justice and it's been, you know, almost on a phone call by phone call basis each phone call is required four votes to authorize. That's -- if that's what you're contemplating, that is not what I am contemplating. I'm happy you're willing to consider getting security clearances. I think commissioners would probability need to for the kind of briefings that I would suggest we request I think, yes, commissioners would need to get security clearances. I don't think that's an insurmountable obstacle. And I would suggest we get a small number of staff people also. It's a few thousand dollars a piece. It's -- probably takes -- might take a few months. But I don't think -- there are apparently a bunch of lawyers in town who have security clearances based on the clients they represent. I don't think it's an insurmountable obstacle and I think it would allow us to receive information we otherwise would not be able to receive. And I think we ought to make affirmative outreach to if there are twelve on-going investigations then to all twelve of those investigatory bodies and see what they are willing to share with us. I completely agree we also should be as willing to share both any information that we have as well as our expertise here, which, you know, because there are money and politics issues that are being written about and, you know, generally speaking pretty much everything takes money to accomplish. So there may well be spending issues that haven't even shown up in the newspapers yet that if we started to dig in and try and get some more information we would find out about. I also think that one of the alarming aspects of the just, you know, sort of what's come out so far is the ingenuity that's been -- and the aggressiveness that appears to have been deployed. And I think to say we should only focus on the things that have been identified and previously published reports and assume that no new tricks are going to be played, I think that's a mistake. I think to the extent there are current loopholes we either know about now or could identify through which foreign money could flow, it would behoove us to try and address that ideally before something lands in front of us in the enforcement context. I think we just need to make sure we are closing off the spigots. I appreciate your willingness to engage with me on the policy matters, prospective rule making margts. I don't think we need to resolve every aspect of that before we start a rule making and put it out for public comment. I think if we were to do that we would get a lot of good feedback from a lot of smart lawyers and smart nonlawyers outside the building that would really enhance the product and we should not predetermine there's only one potential path forward and we're only willing to put out one set of options for public comment. I think that would be a mistake. So I guess -- >> Just a question. If you have in mind getting security clearance, it seems we need to take a look at exactly what we want to do with that and how we're going to go about using any information or even successfully getting it, because any agency that I can think of that would have serious security issues before them is going to be very careful about how they give it to the FEC because they have no knowledge as to how well we can -- even though somebody may have security clearance, how well our system is to protect that information and they're going to want to know very carefully what we intend to do with it and why went to get it. So we would have to ask them I think this is what we think we want to know more about. When we get down to the nitty-gritty of it, I don't think we can walk in and say we want to learn more. We want to get security clearances and -- I think that's the problematic. I'm wondering how are you perceiving we might successfully make sure we don't need when 90 percent of the information -- I mean, I think there's areas we really could learn a lot. That is how money is moved. That's kind my thinking right now. So many different ways. Learned quite a bit how bit coins work and it's incredible the way money can move and people wouldn't know it. It's things of value, not just money in traditional sense. Those are things I think might sharpen our rule making but I'm not too sure where you want to go with that. I think we should do baby steps. Remember the movie? Baby steps? >> If baby steps (Away from microphone) willing to take baby steps. >> Focus ourselves and see where we want to go and then I'll get an understanding this is what we're going to try and accomplish. Madam vice chair. >> Thank you, Mr. Chair. I just can't help but think about the last matter that we had on the agenda, the volunteer mail exemption. We have been talking about it for seven years. We're auditing six committees that have no idea what the legal standard is. Our own auditors and our own lawyers don't know what the legal standard is. And now we want to come along, get security clearances and participate in investigations that we have absolutely no expertise in whatsoever. We know right now there are many other federal agencies and congressional committees investigating or doing fact finding on the issues regarding foreign participation. The special counsel, Department of Justice, FBI, CIA, N SA, the financial crimes enforcement network U.S. Senate intelligence committee, U.S. house committee and at least six other congressional committees are looking into various aspects of the 2016 election. That's a lot of different entities. All part of the Federal Government and we're now proposing we get security clearance and go over to the FBI and let us know about confidential security issues going on in investigations with foreign nationals and it's just stunning to me that's something people are actually considering doing. I think we should mind our own house. I think we should do the things we're more expertise in. I agree obviously if a complaint is filed we have a specific statute in our -- in Feca called enforcement and we should follow the statute and handle all enforcement matters within that context and as you know those matters have to be held confidential. Then as far as all the other agencies that I just read, yes, we should wait until they've issued reports. We should learn from those reports. If they've found something that implicates our laws and our rules, then absolutely, we should open a rule making, and if it's necessary to curb some kind of in foreign involvement that we have jurisdiction over, yes, we should do a rule making then. But again the notion that we would be duplicative just now get security clearance and try to somehow wedge our way into on-going investigations is really just -- it's really hard to believe. We don't have the expertise to do this as I said and many other entities are engaged in this and they have been. These investigations have been going on for months and months newspaper reports recently that President Obama knew about the foreign meldling as far back as August of last year. Here we come almost a year later and say we just got a security clearance, let us into your briefings. Again, we should do this professionally and responsibly and follow our statute, do this in the confidential enforcement process. Of course if any other entity seeks our expertise on the finer points of FECA, of course we should provide that expertise. That I fully agree with. And we should offer any information that we get in our enforcement process to relevant departments. I think probably we're all talking about the Department of Justice and we have done that before. Anything beyond that seems to be duplicative and really not part of why we are here. >> Thanks. I agree. I think if we're doing baby steps certainly whatever entity we're talking about I think we would stuck with Department of Justice because we have a memorandum of understanding, had it for a long time and whatever -- I think people forget in case people here don't know, we don't do anything in terms of enforcing law from a criminal perspective. Means we can only find nobody goes to jail based upon what we do. We operate on preponderance of the evidence. They operate under reasonable doubt. Everything here is different in that regard. They have deaf needs to have security that we don't generally have to have and other than keep our processes confidentiality which I think we do a pretty good job of bus I think we could maybe sharpen that up in some respects too. And maybe before we end we could talk to anybody about getting a security clearance. Have to make sure we can guarantee we have that here and think we could probably qualify to do that right now. I think if we want to do something along that line it would have to be the natural place to start and I think it would have to be kind of a finite inquiry and see, for example, if we refer a matter over to the Department of Justice they may like to know we have been through some process on an elementary scale to see if it's a case they even want to take. We have more sophistication about that, might help. Those kind of things. But I think if we start getting on the telephone and calling up these other agencies and telling them we'd like to come on over, want to get a security clearance so -- I think it's going to be a hard sell. Commissioner Weintraub? >> Thank you, Mr. Chairman. I'm not sure if people are misinterpreting me on purpose or perhaps I'm not being clear. I'm trying to avoid duplication. I think we should reach out to other agencies that are involved in investigations. I don't know about you but I have been reading about a lot of campaign finance issues and I'm trying very hard to avoid talking about any individual. You know, my colleagues are, you know, full of names and examples. All of them oddly seem to be democrats, but okay. Those are all the examples that you can think of. I suggest we reach out to the other entities in government that are conducting investigations and ask them whether there are campaign finance issues that are part of what they are looking into, offer to be helpful, offer our expertise, and ask whether there is anything we should know about. They may have information. You know, and they've got, you know, dealing with us may not be their No. 1 priority. They're involved in very sensitive investigations and trying to get to the bottom of things, and that's appropriate. Maybe it has not occurred to them that, you know, maybe we have other folks in government that either should be in the loop or might have some expertise to share. So I would start there with just reaching out and saying, are there any campaign finance issues that you are looking at that you would like to share information with us about or take advantage of our expertise in this area because we know a thing or two about that? I think that would be a constructive step. I would like to ask our staff to -- I would like to invite our enforcement staff to make suggestions to us to tell us what fields of expertise they think they could benefit from adding to their portfolio, and I would specifically like to ask them to report to us and make a recommendation as to whether they think it would be beneficial to have at least a couple of lawyers on staff who have security clearances and, you know, I think it would have to be based on the way we're organized we'd probably have to have one or two to get practical and useful and I defer to our counsel on that, one or two staff attorneys and probably the head of the enforcement and acting general counsel because people are going to need to -- as the chairman said, you need somebody else to talk to. No point in having one person in the building who has a security clearance. >> Doesn't that include the commissioners at that point? I mean, if we have to make any judgments we would have to have the information that was -- I'm just talking about where the proliferation actually goes. >> I think, you know, it doesn't offend me that, you know, commissioners and a handful of staff will all get security clearances. I don't personally see that as problematic but I would ask that the staff make a recommendation to if would it be useful and if so, you know, which staff and/or commissioners do they envision, because obviously we're not going to get it for the entire office of the general counsel or entire agency, who do they think it would be useful to have that level of security clearance and, you know, and there are different levels of security clearance and what other skill sets would they find beneficial going forward. And I guess we're going to have to work across the aisle and see if there are is any kind of a rule making proposal that we could even put out for comment. I would hope there would be. In the nature of how we do rulemakings we tend to put out more than one option. So if the offer is -- option and only our option that's probably not terribly constructive path forward. >> Would you reject it? If we're talking baby steps, that was my suggestion, but every time we add another layer of activity, it invites more disagreement where a smaller area of activity might -- the day and could go from there and I know you give me that skeptical eye but I'm raising the point. >> We have two proposals on the volunteer materials exemption, Mr. Chairman. We tend to have two proposals on everything. If you're saying why don't we just go ahead with what the Republicans want to do and not have a democratic alternative or not have any alternative, then -- >> I don't think anybody's saying that. >> That's a little bit hard for me as well. >> May be different points of view but I don't think it has to be partisan on things like this. >> It shouldn't be partisan. You know, but that's what I'm trying to explore, you know, on this rule making idea what I heard offered before was, you know, would you be interested in the proposal that the Republican commissioners put forward before and my response to that is I would be happy to put that forward as a -- out for comment along with other alternatives or at least one other alternative. >> Madam vice chair. >> Commissioner Weintraub, going back to something that you said earlier that I tried to write down. I think you said ask the other agencies if there are campaign finance issues they are looking at and that they would like to ask us about, and I think there was something else that I missed. >> It's a two-way street, ideally, I would think. What I would like to ask other entities that are investigating this issue is, are you looking at any campaign finance issues? Are there issues where we might be helpful to you where we could share our expertise and are you encountering things -- information in the -- that affect campaign finance, affect money and finance, affect how money is moving that you believe we should know about. >> Let me just suggest this. First of all, and I think the point is well said, we are basically enforcement agency and disclose agency. That's what we do. Not in a position to move into and those kinds of things that's not what we do. We enforce the laws we have on campaign finance. We're talking money. If you look at where we might go in the next few months you might be looking at the special council, Department of Justice, all of those would be natural ones to go to. Do you think really given the nature of we could either add anything to their benefit or get much from them with the type of security that would be required? Realistically move the ball ahead for us in those areas? If you say yes I'd be surprised but if you say no then we would have to go somewhere else. And so to me that's all -- you know, sounds good but I don't think it's a practical matter we're in the house intelligence committee or the senate or special counsel or the Department of Justice wanting to really open up their dociays and tell us about the issues they've confronted and everything in the past when everything is on the move right now. I think if we were going to do any rule making that touches on some of these things, I would be inclined to let a little time pass because every month and week we learn a lot more about how things have been moving in the system and with other countries and those certainly can be educational just from watching what's happening, just thoughts. I'm not trying to put cold water on it but I think realistically we have to take a look at what we can get done. Commissioner Weintraub? >> Thank you, Mr. Chairman. I actually think we totally should reach out to all of those entities and ask and we will not know the answer to that question until we ask the question because what I am reading in the newspaper suggest to me there are campaign finance issues at issue that other entities are looking at and I -- >> Let me ask you this -- >> Let me -- >> Sure, of course. >> Finish a thought. Because I'll forget it. I think we have expertise to offer. I think that it may well be that informing us is not their No. 1 priority but if we ask they may well say, you know, there are things that you should know about and I want to stress that we have other functions besides enforcement and disclosure. We are the Seoul rule making body rule making body in finance. We are the sole entity that under the law can write any regulations affecting campaign finance or money in politics. So if there are issues that need to be addressed through rule makings, we're the only ones who can do that. >> >> I understand that and I'm not saying it wouldn't work. Just seems to to me to be a hard sell considering the -- >> I take it I got a hard sell here, Mr. Chairman. >> >> I understand what you say comping we need to sharpen our tools in terms of how to deal with issues in terms of the money moving in various directions, but I'm just not sure they're going to be -- feel confident they could say sure, this is how it works and given the fact that there's some pretty tough issues they're confronted with, and I don't think they'd want to make any mistakes unless they knew us really well -- >> They might say no. Won't know unless we ask. >> Just saying. Anybody? Madam vice chair. >> You're saying because you have seen in the news that we should call up Bob muscular and saying are you looking at FECA, can we help you and do you think we should -- any information they're not small, they're zero. Why I know that is because we have been interacting with the Department of Justice for years. Since I have been here I can barely think of any information that they've given us on much more mundane matters than this. Much more mundane than that. You can look at all the closed enforcement matters. See the lapse of time that we have waited in many cases to receive information from the Department of Justice that never comes. On very mundane issues. That's one. I think it's a certainty they're not going to share information. I have no interest in cabling up Bob Muller and asking if he needs my help or if I should know about his investigation. I am not interested in sck him to let me know about his investigation. Also, there have been other times where we've read in the newspaper that the Department of Justice is looking into campaign finance violations. There was a couple of years ago the hot button issue was coordination. I remember being at several public conferences where the Department of Justice would say we've got some new theories on coordination and we're going to enforce this law. I don't recall anybody proposing calling them up in the middle of their investigation and saying can we be helpful to you? Is there anything you want to tell us about your on-going investigation? There's no precedent for this. Since I have been here we've never called up and done this type of thing. I remember when John Edward -- I can't remember a Republican. If you think of one let me know. When he was being prosecuted for campaign violations, I remember thinking the theory of the case the Department of Justice was using was one that I didn't agree with. I thought they were misinterpreting campaign finance law and I did want to call them and say hey you might want our expertise on this but I didn't think it was my place to do so. I figured if they knew our phone number and are right across the street and wanted to call me and get my read on FECA they could have done it and I would have been happy to give it to them because I think he was wrongly prosecuted on a FECA violation that shouldn't have been. There's been rheumnews examples of this kind of thing where we read in the paper will allegations and nobody has thought to get a security clearance or ask for briefings or find out things we should know about in those pending investigations and I don't think we should start here. >> Commissioner Weintraub. >> I'll say we should pay attention to many instances we read in the newspaper and there are times when I think we should start investigations at our own behest when we read those papers. >> There's a problem for that based on a newspaper report. Got to get four votes though. >> Yeah, well, there are three votes who don't believe that we should ever do anything based on a newspaper report so I don't think that's really going to lead us anywhere. >> Well, I think we have to be realistic about that and I think for us to -- let me just ask you. Suppose you want to investigate something and you find some wrongdoing, now what are you going to do? What will you do? We investigate. No respondent in sight but we run across three or four people who we perceive to be really bad stuff in terms of campaign finance. Now what do we do? Certainly we already made up our mind. Are we going to go now and be the judge and jury? How are we going to bring somebody to justice. Issue subpoenas.? Then go give our reports to the DOJ and, with who on staff. I think these things have to be thought out before we embark. I want to hear what you have to say about it. If you wanted to move forward with investigation wast any default or case. What would the thinking be? >> I don't even know. Not even sure what you're asking, Mr. Chairman, because I have not suggested that we engage in some free form investigation with nobody in mind to investigate. I agree with you I don't know how we do that. >> Suppose you do have somebody in mind and there wasn't a case pending before us? You can say I think that's a violation, but what would your proposal do? >> There is as Commissioner Hunter pointed out, there actually is a process in our directives for us to launch an investigation. The fact that we just like any other case the fact we launch an investigation doesn't mean we have predetermined the outcome of that investigation. Just means there's something worth investigating. I guess I'm not seeing how anything that I suggested would move us into -- >> Let me just say you and I are the longest serving on the commission. >> We are. >> And you just a little ahead of me, but we have never to my knowledge thought that that was something that we would either consider seriously or spend money or budget for. So what's your thinking on that? >> I agree with you, Mr. Chairman. >> That's okay. >> It has not -- >> I can take it. >> I know you can. There is a process for us to launch an investigation if information comes to us. Certainly, you know, if another government agency were to provide us with information that caused us to think, wow, we should be looking into this aspect that maybe is not their primary focus but they have come across some information that they decide to share with us and the Department of Justice and other agencies have from time to time sent us information and said you might want to look at this. That's not unprecedented. We have a procedure for launching an investigation on our own behest. It hasn't been used very much usually -- there have been times when I have seriously considered whether I wanted to deploy that I think it's directive six to try and start our own investigation, but usually I find if I just, you know, wait a little bit longer somebody else is reading the same newspaper articles that I am and they filed a complaint and, you know, we deal with it through the normal complaint process. But I'm not -- I guess I'm not really clear on what I have said so far that would make you think that I am interested in launching some free form investigation. Much reach out to another government agency say is there anything you should know about we have information on actually yes we would like to tell you about such and such then we have information. It wouldn't be like we're just sort of roaming the streets looking for someone to investigate. We would have direction based on the information that was in front of us. I'm not really sure where all this is coming from. >> We have gotten in the past letters that suggest we should try and point out some wrongdoing and suggest that we conduct investigations. I can think of some over the years and we have never lifted a finger to do that: And I think rightfully so in the sense that first of all we're not structured for that but secondly sooner or later they seem to be at our doorstep anyhow. Through some complaint that was filed. But if you can think of anything right now other than in the world that's, you know, before us in terms of things that are already irnd investigation, you know, we could talk about it, but I don't see where that might be and so I'm skeptical whether that is the best step for us to advance our skills and I'm not convinced we're leaving people free from potential law enforcement to any real degree because we haven't embarked on that. And I mean, I would welcome at our next meeting for some detail on how you would perceive we should structure our organization because we have to figure out what legal areas we're thinking might be violated, how much money it would take to investigate, what information could we get without a subpoena? What investigators that we have would do this when we also have a lot of good serious pending cases before us. So I mean I think those are the technical issues that I would foresee would be -- we would be confronted with were we to take on an investigation like that. >> I don't know what this investigation is that you think I'm proposing we take on. >> I don't either. I'm not pointing out we have the power to go ahead and do that so I'm just bracing the issues about if we were to do that how would you propose we practically do that? >> I'm sorry, Mr. Chairman, I just -- I don't know how to answer that because I'm not making that proposal. What I am suggesting is that we ask our staff to give us a recommendation about the skillset that -- any skillsets that are missing in house that we would like to -- we think would benefit us to have. I am suggesting that we reach out to the other agencies that are investigating issues of foreign influence, offer our expertise and ask them whether whether there's anything we can do to help them, offer them any information we may happen to have and ask them if there's anything that in the field of campaign finance they think we ought to know about. I'm going to continue to try and work with my colleague to see if there is any kind of regulatory proposal because I think that there are current loopholes in the law that could allow whether it is the thing in the newspaper today or not, I think there are people out there from foreign places that are trying to influence our elections. If they have not found these loopholes yet, they will. We really don't know because there have been hundreds and millions of dollars in dark money spent on our elections and by their very nature of it being dark we don't know where it comes from. That's why my proposal about certifications would not get at what I would like to get at, which is to clear up where the dark money's actually coming from but would merely find out where it's not coming from. Make sure it's not coming from impermissible sources and we would flesh out what that exactly what that means. I think that you, Mr. Chairman, have suggested to me we could invite somebody from treasury over here to further educate us on how some of these foreign money transactions are conducted. I think that was a constructive suggestion I wholeheartedly endorse. I think it would be a great idea. Informing ourselves -- I want to wait until there is a public report out there two years from now. I think we should see if there's information available to us now. >> I think things are more sophisticated now in the way of money and things of value are moving and how things of value being increasingly looked at as something akin to a basis to enforce the law criminally. I think we could sharpen our skills on that. Maybe the general counsel could give some thought to that. The question was whether or not it might pay for the Office of General Counsel to take a look at some skills that we might want to sharpen up on. We run across most of them anyhow. From my interest I'm interested to know how some of the money is being moved and things of value and how those should be kept in mind if we were to engage in some regulatory work. >> We could do that, although I think I need -- >> Not asking for security clearance. >> But I think I need to state since we are in a public session there are no skill gaps in the. [ Overlap ] >> There we go. >> Perhaps there are things that could make you even better. >> We always strive to be better. >> Very well said. Mr. goodman. >> I don't want to leave on a note of disharmony because I think there was some agreement here today. >> There was. >> And we should emphasize all about where we disagree when there is agreement that the issues raised in your memorandum row are important. All of us are Americans first here. Very important issues raised. You mentioned the skill sets for in-house. I think there's agreement on that. You mentioned starting some type of communication. I think where we might disagree is the understanding of how we might communicate with other agencies. It would be done through the normal -- under the umbrella of our enforcement process. Now, you may have some other notion of how we're going to communicate with other agencies. I think the how to can be resolved but given that I take it that the issues to be communicated and shared and the expertise to be provided might be specific to individual cases. This is not just in the air. It would have to be done in enforcement context using enforcement procedures. Then you mechanized rule making looking for loopholes. You mentioned what your proposal would accomplish and that is to at least ensure the money isn't coming interest prohibitive sources. I think that our proposal does the same thing. Because it requires someone when making the expenditure or the contribution to certify compliance with existing law that prohibits money to come from a foreign source. The difference between your and our policy, ours the one we have proposed twice and been voted down twice, our certification proposal would call for or provide a certification mechanism for compliance with existing law. That only Americans make corporate political spending decisions and only American Funds are spent and we think that law is consistent with definition of foreign principle in the freedom -- in the foreign agents registration act: Your rule making proposal, we think that could be done, that type of -- that would be a compliance mechanism that doesn't require rule making. Your proposal is a rule making that changes the law, changes the definition of foreign national to go to some type of percentage base of ownership that I do not see in the organic statutes. That is something -- I'm happy to continue to discuss it with you, but that may be an impasse. And we need to get that elephant up on the table that you may be looking at what in the end result is a legislative recommendation and not just a jump out the door rule making. And finally, you said if there are issues that need to be addressed, we should act on them in a policymaking mode. Again, I say let's gather the facts. This is what you said. Let's gather all the facts. Let's act thoughtfully, deliberatetively, and my position's just the caveat, that we not overreact. There is a phrensy going on in the news articles, cycles these days and I think that whatever policy proposals we made, whether they're rulemakings, whether they are policies, whether they are legislative recommendations need to be informed by specific facts and findings and based upon what I read in the press they are far more complicated given the ubiquitous information on the World Wide Web. Before we charge out prematurely with policy proposals or overreact with policy proposals that aren't tailored to actual loopholes, I think it would behoove us to abet cautiously and that is informed by history. I want to read justice Hugo Black descending in Dennis V. United States 1951 decision, one of the communist cases which tested the Smith act. I are went to see the ska Leah show at -- who of course is quite a hero on the bench. When it comes to First Amendment this there is no purer than justice Hugo Black who said no law means no law. So he was a greater defender of those socialists and people who found themselves out of vowing in a time of fear and hysteria, fear of foreign influence in our politics. So in his opinion in Dennis V. United States there is hope, however, that in calmer advertisements when present pressures passions and fierce subside this or some other court will restore the First Amendment to a higher place where they belong in a high society. Mr. chairmt I think that's the point you made, we need to get some time pass and gather more information to act deliberatetively before we rush out in this field too quickly in reaction to the news reports we're reading. Former justice Brennan who was part of that Warren court block also throughout the 13-year period of the communist cases coming to the court. He later gave a speech looking back historically on that era in our history and said after each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the era when the next crisis came along. He said that in 1987 lecture at the law school of Hebrew university in Jerusalem. This is a common notion in times of crisis we tend to overreact. I'm throwing some caution to the wind that we act deliberatetively and professionally in response to the issues raised in your memorandum. I think there is a lot of agreement on the proposals you've made and we shouldn't let some points of disagreement get in the way of that. Thank you. >> Thank you very much. Commissioner Weintraub? >> Thank you, Mr. Chairman. I think justice Brennan was probably talking about Mccartism and the red scare and people losing their jobs and we're just -- it's not what we're talking about here and I do think this is a situation in which people are \justify\justice\just havely concerned about what is happening, what has happened and what could happen and I'm glad to hear the areas of agreement but I'm a little bit frustrated because it sounds like, you know, there's a general consensus that we just shouldn't do anything too quickly. We should sit back and wait for other things to happen and, you know, maybe in a couple of years we'll be in a position to assess what may or may not have happened, and I just -- I think the situation's a little bit more urgent than that. That's just my own personal view. I would like to get some clarification because I've heard a couple of different approaches. I'm really not sure whether there is agreement on this point or not. We talked about different -- it sounds like we would have to talk further about the mechanisms that we would use to seek the information but I can't tell whether we do or do not have agreement that we should reach out to the other government entities that are conducting investigations in this area to see whether, again, I'm looking -- I'm not looking to, you know, say, hey, just we're really curious and we would like to know what you're looking at in, you know, the area of hacking, which we don't have a lot of expertise in. What I would propose that we ask is do you have campaign finance issues that you're looking at, can we be of use to you in that area and are there -- is there any information in that area you think we should know about? And what I have not been able to discern is whether there is or is not agreement to do that. >> Mr. Chairman? >> Commissioner Goodman. >> Perhaps the reason that they're is some vaguery in that is because I think we're getting into the area of executive privilege. On existing matters and the mechanisms we may use to address existing complaints. >> I'm sorry, you didn't mean executive privileges in the executive branch. >> I'm sorry. I meant our law enforcement. Confidentiality and privileges. Point taken. And that's why I have been speaking around the issue that there are general mechanisms in place in the law enforcement context. That's as specific as I want to be in this public meeting. >> Can we take it up in a closed session then? >> I expect we will at some point. >> My suggestion would be if we embark on that that we consider rather than think plenary approach to a number of different answers. We are tied directly with the Department of Justice. I think we should if anything begin with a conversation there. They may say we could really use you over at the securities and exchange commission or they could really use you at the -- they may have some ideas themselves. Certainly I think they got kind of a black eye with Edwards and they realize I'm guessing they talk to -- I thought it was on both parties thought their interpretation of the law wasn't likely here today. That that might be a good place to start. Hearing nothing we've exhausted our expertise. What do you think on these issues in terms of -- we're talking IT and could we benefit by calling other agencies and getting their IT expertise? I think given the money we've spent and the people that we've hired you might have some ideas on whether or not that's a useful step. >> Mr. Chairman, I was hoping you were going to ask me if there were any additional matters. >> I know you were. I can see that. >> Let me give that some thought. I think that's a very thought provoking question, something that deserves some serious consideration. Allow me to think about that. >> Sure. Of course. Thanks. We'll do that. Office the general counsel? >> (Away from microphone). >> From my perspective I think we -- I don't think you can expect any of us miracles on the beginning of these conversations but I do think it's been good. >> Well, I'm really glad we were able to resolve (Away from microphone). >> Well, with that, okay, you get the magic question. Are there any matters no longer entitled to exemption. >> Mr. Chairman, there are no such matters. >> Mr. Chairman, just to clarify, that's not the question for this matter. This management administrative matter. >> How about that one? >> Same answer. >> Meeting's adjourned.