This file contains archived live captions of the open meeting of the Federal Election Commission held on April 19, 2023. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.



 GOOD MORNING, THE OPEN SESSION FOR THIS WEDNESDAY, APRIL 19 IS IN ORDER. BEFORE WE DIVE INTO OUR AGENDA YOU CAN TAKE A MOMENT TO ACKNOWLEDGE A GRADUATE OF OUR STAFF ON RECEIVING THE MOST IMPROVED SMALL AGENCY AWARD. FROM THE PARTNERSHIP FOR PUBLIC SERVICE. OUR ENGAGEMENT SCORE INCREASED BY 4.8 AND WE WERE RANKED IN THE TOP HALF OF SMALL AGENCIES FOR TEAMWORK CUSTOMER SERVICE. SO THANK YOU TO THE INCREDIBLE STAFF ARE DOING THE WORK AND CONTINUING TO MAKE THIS AGENCY A BETTER PLACE. Onto our agenda. 
 I move that the Commission consider  press office acknowledgment of complaints and that the Commission  determined that business requires no public announcement was possible. I further moved to suspend the rules on the timely submission so that Commission  can consider a late submission  
 Motion?  All in favor?  Motion passes unanimously. The first matter on the agenda is the Draft Advisory Opinion 2023-one. In response to requests from Representative Diaz Barragan on her behalf we have Brian Svoboda and Antionette Fuoto. On behalf of  OGC we have Sarah Peck.  Mr. Svoboda and Ms. Fuoto, come on up. I will remind everyone to keep the microphone close to you.  With that, whenever you are ready. 
 Thank you, Madam Chair and good morning Commissioner. Agenda document 23-01-eight is a draft response to an advisory opinion requests omitted by Representative Diaz Barragan.  Representative Diaz Barragan asks  whether a of the congressional caucus she may use campaign funds to pay the travel expenses for certain individuals to attend Congress events. In particular for individuals who will serve as speakers or headliners at official events and for staff facilitating events. The draft concludes that the proposed use of fees for these funds is permissible under the act and Commission regulations because the expenses are ordinary and necessary expenses incurred in connection  with the requester's duties as a federal office holder. Concerning the request, the Commission received a letter from  you is repetitive Brian steel, response to the letter from the requester and then a second letter from resented steel responding to the requester's response. The letters are available on the Commission's website.  The Commission received no comments on the draft . I'm happy to answer any questions you may have. 
 Thank you. Colli, questions?  
 At a.  
 Thank you. Welcome to the dais. So, let me first ask, there was correspondence from the chairman of the House committee, committee on House administration last night. Did you receive it?  
 I did.  
 Is a basic fairness to you, do you have anything you would like to say in response to that letter?  
 I reviewed the letter and I don't think it is consistent, I don't think it is inconsistent at all with draft letter a from the Commission. I think a footnote one of  the draft addresses the concerns I discern nothing for my read of a letter that indicates any contrary view as to whether the proposal is inconsistent with the active Commission regulations. 
 Let me back up if I may.  As you well know, these questions about personal use of campaign funds have come to dominate our advisory opinion process for the last year or so. I read your request and I am struck by the force of the advisory opinions you cited to us, to the extent the ping for foreign language courses is protected, that is a pretty strong precedent in your favor. But I have concerns and I have express them in other contexts as well about the ways in which the Commission  inch by inch and over decades and almost imperceptibly has drifted away from the underlying statutory text in similar advisory opinions. So, recognizing again the precedent you brought to us, I have some concerns about going further. Since I have you as an, had a couple questions. You know, it is hard enough to apply the respective test in the context of candidates.. But in the least in the context of candidates we institutionally have a certain level of expertise. There is a range of type and depth of campaign expense appear. But the Commission as a whole  has significant camping experience. None of us have held office. Incumbents I think are in a somewhat different position for some practical reasons. Access to resources, the challengers do not. They hold office, the possibilities of quid pro quo arrangements is arguably higher. So I think this is an area where the risk of corruption is higher in the First Amendment interests are lower than it may be the case in other things we routinely deal with. I think it is especially difficult because, your request talks about officeholder activity. Recognize the Commission  has not been especially careful on this either. The statue doesn't talk about activity by officeholders it talks about, and I'm quoting, an individual's duties as a holder of office. My first question is, it seems to me that the term duty implies something mandatory. An action that is inherent in the office tied to the responsibilities of the office itself, not necessarily voluntary or collateral activity of being in office. So, my first question to you is, do you see a distinction between an individual's duty as a holder of federal office and officeholders activities more generally?  
 I think the duties commit to the member some measure of discretion how to fulfill the position that they hold by virtue of their election and by virtue of article 1. I think it necessarily presupposes some discretion on the part of the member in how to most fully live that role as an officer. So if you look, for example the house ethics manual and how that discusses the same issue of personal use, and particularly the use of campaign funds, I'm talking here strictly from an ethics context, I realize it's apple and oranges. But in the ethics context they accentuate the members generally have wide discretion to use campaign funds to perform their official and representational duties. So, the manual will give examples of where the committee would view those uses of funds as being permissible. Like, for example, holding a special event on the occasion of a staff member's departure or on the occasion of a special event involving a staffer or like for example the purchase of commemorative gifts to give constituents who come to the office. But, these examples are not presented as being exclusive. They are being presented as being within sort of a -- this is my phrase and not the committees, -- eight presumed reasonableness where there is a clear enough nexus of what a member ordinarily does that the use of campaign funds is permissible in that context. It echoes in a way, again realizing we are talking about apples and oranges, the discretion that the act generally provides with respect to these campaigns. It provides the campaign funds, it provides campaign funds that may be used for any purpose other than personal use and then describes personal use. To avoid the risk of corruption, what help keep that risk for becoming reality, one, in this particular context is the ethics enforcement context. The quickest way for member to get into trouble over personal use of campaign funds and House of Representatives is for someone to file a complaint with the house ethics committee this rule changes going to make it easier to file a complaint with the office of Congressional. Members have a greater incentive now than they did 15 years ago, 30 years ago, to look closely on the balls and strikes of their particular spending. So that is one bulwark. The second bulwark is the fact the disclosure that members make of these dispenses expenses on the report where they are asked about them and they have to articulate in a reasonable way with therefore. The third bulwark comes out of the house ethics rules which is the requirement the members not only must avoid personal use of, must maintain documents sufficient to show the modified campaign and political purpose of the expense incurred. So, as is the case for example with Congressman Bud Schuster the ethics committee did not make an finding of actual personal use but held that the failure to maintain documentation created a sufficient appearance of personal use that it was subject to discipline. I think the answer in the end, Commissioner, is we are in the one zone of activity when we are talking about incumbent members of Congress and House of Representatives in particular where practical and legal structures provide higher level of protection than you see.  
 I appreciate that. That gets to my concern, which is, how do we articulate ourselves what is and is not a member of Congress's duty. You are absolutely right of course. The Constitution gives Congress essentially unlimited authority to set its own rules and procedures. That is an independent grant. Part of my discomfort comes from the fact that we are sitting here in an agency of the executive branch of the government passing upon the duties of members of another branch of the government. And, I guess my question is, what do we do -- let's take the easy answer first. I think you've already answered it. There is definitive guidance from the Congress that particular action is a duty of a member, I will ask, I would think we would defer to that, but do you disagree?  
 No am I don't disagree. I think, going further, I think the history of interpretation in the house at least gives members some measure of discretion to determine how they best fulfill their duties. Now, they put guardrails around that, that's why they have an ethics committee, ethics rules, and it's why these rules can be strict. But, it occurs in a context I think in part for the reason you described, that you wouldn't read duties in the personal use restriction to mean it helps you vote, it helps you attend committee meetings, and beyond that it doesn't let you do anything.  
 What about the inverse?  If Congress has said, your duties are to vote, attend meetings, travel is a member of an eligible congressional member organization, let's say Congress has expressly blessed that, easy question. What if Congress had said no, what if there is some guidance that no, the Congress determined that X or Y is not in fact a duty of the office. As you pointed out in your response, we have an obligation under the act to give an answer, and advisory opinion where we can, provided they are not two hypothetical. How should the Commission think about situations where  the Congress may disagree with us?  On the understanding of a duty?  
 I think you still have to approach the personal use question from a two-step analysis which is you do have to start however big it may be, you have to start with the respective test and you have to ask, with this expense exist respective of the individual's status as a candidate or member of Congress?  So you have that standard first. And then buttressing that, almost as an exhalation point, is that specific allowance allowing for the incurrence of ordinary and necessary expenses in support of the members duties as a holder of federal office.  
 So, I think in this case, for example, where the requester is asking, while wearing their member hat, with the support that can be provided by their member office, under the auspices of the House of Representatives, and hold events that meet with constituents and discuss policy issues, with no other indicia of political activity or personal activity or things not having to do with status as a member of Congress, in that case, the respective test, even before one got to the specific allowance for duties of a federal officer would make these permissible.  
 I think, respectfully, that the little circular. The respective test gets tied again -- and expense or obligation et cetera that exist, irrespective of one's duties of office as officeholder. We need to have a definition of duties to do the analysis. So, let me ask a direct question, I understand this is not your view of the house administration committees letter. But, if it were the case, that there were some definitive rule of the house that a member cannot use campaign funds for travel, would you agree that the Commission should not bless  -- should we undertake our own analysis at that point or do we defer to Congress's prohibition?  
 I think you would let Congress enforce its own prohibition in that case. Again I am speaking strictly hypothetical. We do not, we emphatically believe the conduct we are proposing complies with house rules and taking steps to comply with house rules. I wish to give no ambiguity on that point. But in a case where we are hypothetically there was doubt as to whether an expense applied to house rules, just as it would comply with IRS rules or for example I think there was a involving a candidate for governor of Alabama where it was proposed, he would propose to transfer federal campaign finance funds to a campaign for state office. It was contended that the condition, that the transfer would violate Georgia law and hence would fall out the allowance for lawful contributions to candidates for state or local office. The Commission addressing that matter  concluded that we don't mean in the application of a figure standards the laws of the other jurisdictions that may have other dogs in the fight. We are not going to do Pendley evaluate whether this complies with Georgia law just as we are not going to evaluate whether a transfer maturity is going to, whether it is or isn't a viable qualified, the statute requires us to limit it to the application of the act.  
 I take no ambiguity in your position. I'm asking a larger structural question. Have to worry about where this is going. So, that is helpful. I'm not sure I'm comfortable with the concept of the FEC -- Congress sets our jurisdiction. Congress said personal use is prohibited and that personal use includes expenses that would not exist for the duties of the office. It seems to me Congress then definitively states what those duties are that up or down, whether blessed or prohibited, as a member of a coequal branch we have an obligation to difference that decision. You may agree or disagree, but the last question I have is sort of related to this correspondence with the committee and house of ministration. First, just a straight legal question. Do you agree with the letter's assertion that representative Aragon will have to retain a preclearance from the committee in order to determine whether this is an official expense?  
 Is not a formal process in the house by which that occurs. I take the letter to mean that the committee, asserts jurisdiction over the activities. And that the committee would expect the member to consult with the committee over an issue that the committee believed was in its jurisdiction. And the Congresswoman has indicated she wishes to do that. I think perhaps the one practical element of this process, particularly with regard to the house besides the ethics committee is there is not a clear formal process in the use of campaign funds context by which this occurs. In a committee like house administration, you don't have a nonpartisan professional staff, as you do with the ethics committee, you have a majority staff and minority staff. The norm in the house on either side of the aisle is for members to talk to the staff in their caucus who is most familiar with the rules and get a sense of where the committee is likely to come on this. But that is a process we have no and we respect Mr. Stiles desire to we seek to comply with CHA regulations.  
 I spoke imprecisely. You are exactly correct this is not a correspondence from the committee, it is from the chairman of the committee. I didn't mean to be imprecise. So it's tying it all up, my concern which I would welcome your guidance on is if it is true that an independent executive branch agency owes difference to Congress in Congress's description of its own duties, and if there is some possibility and maybe the strength of the possibility matters, but if there is some risk that we will declare something an official duty of a member of the Congress, and then be countermanded by the Congress itself, I am nervous about putting people on the forms of that dilemma because the function of advisory opinion is standardized under the act, the requested activity. So, does that potential interbranch conflict concern you?  And I guess I'm asking to give me some comfort on this draft the we are not walking into that kind of structural problem.
 I think footnote 1 in draft A which is consistent with the Commission's historical approach on these questions  gives that comfort fully. I think it tells us and I think it tells all others reading it loudly and clearly that you express no view positively or negatively about how house rules impact this question. That I could not derive from footnote 1 or from the draft conclusion by the Commission that I could then shop to some other entity in the house and say, but it must be in connection with my duties because the Federal election Commission said so. I think in footnote 1 you say quite clearly, the opposite. That is consistent with how the Commission has addressed these same sort of multijurisdictional questions with the ethics committees but also with the IRS or with the campaign finance authorities  before. That is the comfort I think -- we didn't propose that comfort, it was the Office of General Counsel the gave that comfort. 
 Maybe this is a question for the Office of General Counsel, in the event a draft is adopted, not to skip to the end, but I think the odds are pretty good, where does that leave us in a future advisory opinion request?  It comes to pass that the Congress has spoken on this question of whether this sort of travels within official duties, if the advisory opinion is out there and the statute provides certain protections as a result of that, are we entitled to change course in light of congressional action?  Or are we kind of stuck with what we have done here?  
 I think that it would be very fact dependent. And I think that then we would look at, okay, is this a hypothetical question?  Because Congress had said this activity is not permitted. We operate under a general assumption that requesters don't take a legal or unauthorized activities, so then we ask, is it even appropriate for an advisory opinion request because is this really a general question of law or hypothetical because they can't actually undertake that activity.  
 Let me ask a related question then, assume there is an enforcement action, we have to vote on it and the allegations are that, obviously I'm asking hypotheticals to see where this is going, I am not in any way asserting those are the facts here, the allegations are something like, let's use childcare because it's unrelated. You've got a series of advisory opinions of FEC that bless the use of campaign funds for childcare. Connection and including with certain sorts of official duties. But the Congress has subsequently changed its rules on what qualifies as an official duty within the Congress opinion. Is the respondent still immunized by these advisory opinions or does the change in the underlying law from the point of view of Congress represent a material change in the law that would authorize enforcement?  
 Thank you for the question, I believe we would have to think about that, not prepared to answer the question here.  
 Am always happy to rephrase a hard question. I appreciate your indulgence. My thanks to counsel. I'm going to support the draft which I did necessarily showing a planning to do. I think my concerns are on the record.  
 Thank you for that engaging discussion. Colleagues, any further discussion or question?  
 Wonderful. Any emotions?  
 Mr. vice chair. 
 Thank you. With respect to draft advisory opinion request 2023-01 I move approval of agenda document draft a.  
 Any discussion of the motion?  All in favor?Aye.  Motion passes unanimously. Thank you.  
 I will give everyone a minute to switch over. The next matter is the memorandum of understanding between the FEC and the department of justice and accompanying notice. Let me start off by saying that this is a big moment for agency. Our current MOU has not been updated -- getting to this point took a lot of great work from a lot of great people. I first truly appreciate the effort of the vice chair and his staff in the Commissioner and her staff for their thoughtful and collaborative work that has gotten us to this point. I want to recognize the FEC staff for its hard work to get this done. Those leading this effort -- from the Department of Justice I would like to thank Assistant Attorney General Kenneth, Robert, Sean and other DOJ staff who have supported the efforts. I look forward to a strong and collaborative relationship. Thank you, everybody, it is nice when we get to acknowledge everybody for their hard work. It's a good day for that. With that I'm going to pass it on to Mr. Kitcher and  Mr. Stipanovic. 
 Thank you for the kind words to all the people contributed to this effort.  As you know before you is a memorandum of understanding between the Commission  and the Department of Justice. Also before you is a draft notice that published the text of the memorandum of understanding in the Federal Register. Is recited in the document itself, the purpose of the MOU is to promote the enforcement of the federal campaign finance laws and to establish guidelines for the Commission and the department to engage in parallel proceedings  and share information in appropriate circumstances and otherwise properly advance the missions of both agencies subject to all relevant legal and ethical constraints informed by the mutual respect and independence of each agency. Is the chair alluded to earlier, the Commission and Department of Justice entered into a  MOU in December 1977. The text of that document was published in the federal register in 1978 and today some 45 years later the Office of General Counsel is very pleased to recommend that the Commission approve this new MOU to be signed by the acting General Counsel as well as the notice  be signed under the signature of the chair. We are available to answer any questions. We recommend any questions about the notice come to Mr. Stipanovic and about the MOU  be directed to myself. 
 Thank you very much, for bringing this. I agree with the chair this is a big deal. This is a big event for the agency. People already said the last MOU dates back to 1977, it is badly out of date and frankly bears very little resemblance to a agency current dynamic has been with the department of justice. And in fact the department of justice took the position over 20 years ago that the MOU itself is inoperable.  So the Commission has been working for the last 20 years to try to get to an agreement with the department on a new MOU  that better reflects our relationship. I believe attempts were made in 2003, 2007, 2012, to get to an agreement. The two agencies were unable to do so. I think today it's different. Maybe today it has finally arrived. With this new Commission, as the chair said, I was working with  on a select subcommittee with our staff and the leadership of the criminal division to try to work on a new MOU and I am very happy and proud to have done that. I'm going to support the MOU, and I'm going to explain why. Think there are three particular features that were important to me that I want to highlight that I think make this a document worth supporting. The first is that, I think this document is serving a very important transparency function. As I said, the old MOU does not really reflect the current state of affairs. And so, to a large extent with this new MOU is doing is not so much changing the dynamic between the FEC and DOJ, but actually codifying what has been already going on. That serves an important transparency function and notice function to the regulating community. Now everyone will be informed, everyone will be on notice about the extent to which the Commission and department of justice  are cooperating an existing each other in enforcement of campaign finance laws. I think that is a big improvement to our transparency mission in the notice of the regulating community. The third thing that was very important to me in drafting this MOU is that I think the MOU critically treats our agency and the department of justice as peers. It preserves all the Commission prerogatives, discretion of commissioners  to decide when and how and under what circumstances we do cooperate or may not cooperate with the department. And it preserves the interest the both agencies have in pursuing their own jurisdiction in the enforcement of their civil or criminal jurisdiction over campaign finance law. Am really happy with the degree of independence that the FEC has retained in the authority that the commissioners are retaining and how this MOU is operated. The last thing I think is important is I think the MOU is going to it serves dual purposes, the first is that I think it's going to make a big difference in the enforcement of campaign finance laws against what I would call the worst of the worst. The criminal, very serious, very aggravated violations, campaign finance law, that I think everyone would agree deserve criminal investigation and criminal prosecution. At the same time, the MOU acknowledges importantly the risks and problems in constitutional dangers of the over criminalization of campaign finance law. It's very important to me that this MOU retains acknowledgment from the 1977 MOU that it's really only most aggravated and serious and substantial campaign-finance violations that are appropriate for criminal prosecution and that other violations are better suited to civil enforcement. I think that is a very important acknowledgment both the department and the FEC are making through this MOU. Want to think Commissioner for all the work we do with this. I want to thank Mr. Kitcher who emailed me  about two years ago and we exchanged some outlines of what I thought the MOU needed to say. I certainly want to thank all the staff that the chair mentioned and assistant attorney general and those in the criminal division. For those reasons I am very excited to support this MOU today. Thank you, Madam Chair.  
  
 Thank you, Madam Chair. I would also like to thank the commissioners for taking on the task of negotiating this memorandum with the department of justice. I know that was not an easy task. It took considerable time. That said, I'd like to take a few minutes to outline for my colleagues in the American people what a dark day I believe is to be for our Republic. Not since the alien and sedition acts of 1789 as a been a more grievous affront to the First Amendment than what we have before us today. This memorandum of understanding is harmful to the free public discourse of ideas and the transparency mission of this agency in four significant ways. First, there is no statutory authority for the agency to enter into such an information sharing agreement with another executive branch agency. Second, this memorandum will significantly I believe irreparably harm the level of candor between the entities that are regulated by the federal election campaign act in this agency. Third, I believe there are significant constitutional concerns implicated in this type of memorandum. And finally as a matter of public policy, this memorandum of understanding is just another example of the recent move to criminalize the participation of the American people in the necessary open exchange of ideas which is the foundation of our political system. As a threshold matter we must always look to our statutory jurisdiction when we undertake any action. Especially when it involves this independent agency sharing information and authority with an agency that is completely under the control of the chief executive. I firmly believe that the only statutory authority that this agency possesses to share information with the department of justice is found in 52 USC 301 nine 85 see where in it states that "if the Commission by  an affirmative vote determines probable cause to believe in knowing and willful violation has occurred or is about to occur, it may refer such apparent violations to the Attorney General." Such probable cause findings as you know come towards the end of the administrative enforcement proceedings. Moreover when the Commission posits an enforcement  matter at the request of the department of justice, criminal defendants are denied access to certain statutory provisions that exist. Because of any criminal action brought violations of fico a defendant may evidence their lack of knowledge or intent to commit the alleged violation by introducing as evidence a conciliation agreement entered into with the FEC and the court when assessing a penalty for such criminal actions must consider the existence of consideration agreement. Unfortunately the Miranda before us would allow the department of justice access to information before the Commission has  completed administrative prosecution to cut off access to conciliation agreement defenses and controlling Senate guidelines. Therefore without specific statutory authority to enter into these type of agreements, we should stay within the scope of fico and what it currently allowed's and the protections provided there in for those facing prosecutions. Second, candor. Candor between the candidates campaigns and other entities we regulate is critical to the mission of voluntary compliance with the line providing transparency and campaign financing to the American people. For example, when the reports analysis division makes a request to a committee for more information to clarify a contribution or expenditure, we rely almost exclusively on the representations of that committee to help us clarify the public record. Moreover, those same committees rely upon our staff to be helpful when they cannot understand the rules and regulations we have put in place. Now, as this memorandum envisions, those requests for additional information in the act of calling for assistance with our onerous regulations will be subject to disclosure to the Department of Justice at their request. How can we expect the regulated community to be forthright with us or seek assistance when such actions can be used as the basis for criminal investigations?  We cannot and more importantly it shouldn't. Third, I believe there constitutional with the information sharing espoused by the MOU. The different forms woefully lacking in notice to those who complete the forms that such information may be shared with the Department of Justice to aid in the investigation of any crime that they may commit they are completing those forms. Colors to the reports analysis division are given no notice that our staff will be memorializing the conversations in notes of the call which may at a future date be turned over to the department justice which may seek to use them as evidence of intent in criminal prosecutions. Additionally, this memorandum would allow for the sharing of information and investigative materials used by the staff in the prosecution of matters under and deemed by the Commission. And little if any disclosure of how that information  would be transmitted to law enforcement is given in this process. All that is to say, there are fifth and sixth amendment issues that are lurking within the memorandum information sharing. Unfortunately our counsel has been unable to provide an assessment of liability the Commission might face if such constitutional claims arrive.  We as a Commission  should be concerned with the upholding of our oath to defend the Constitution by not potentially jeopardizing the rights of those who are brought under our jurisdiction. Finally, I'm concerned that this memorandum only exacerbates the growing trend in America to criminalize the participation of Americans in the political process. We have seen campaign finance reports used as a weapon to go after donors to candidates and causes both criminally and civilly. The prosecution's creation chilling effect on the First Amendment right of all citizens. We have seen the rise of calls for criminal prosecutions to political opponents. Over and above those government prosecutions we see third-party groups using the complaint process of this agency to get press headlines the necessarily force criminal investigations. Those groups are looking to obtain the FEC investigation as a means for calling forth a criminal witchhunt. Frankly, those groups have little concern for the administrative fines the could be imposed by the Commission.  In fact over the past five years the agency has been asked to abate our administrators proceedings approximate 40 times to allow the department of justice to pursue various investigations within the criminal jurisdiction. If this memorandum takes effect, the Commission will continue to be enticed by the department of justice to stall  investigating complaints while matters are batted around the DOJ. The campaign finance system will continue to be used to hunt down those who disagree with politically in the agency itself will continue to be a tool of those looking to harm their political and ideological opponents. Based on what I've laid out here, I will not be able to support this memorandum of understanding with the department of justice. It is my firm resolve this memorandum is without statutory authority, inhibits a necessary level of candor for system to function properly, has serious constitutional applications and does nothing to quell the criminalization of political participation. In fact, at least the people had fair notice of the criminal political acts under the alien and sedition acts, here they will be required to come to the Federal Register or website to see exactly how we are going to share their information about their political committees with federal law enforcement. One can question whether at least having a written agreement with the department justice in place is an improvement over the Commission's recent practice of considering these requests for abatement  and documents in a black box. Unfortunately the answer to that question is largely rendered moot by the defects in this agreement. Accordingly, I plan to vote against the adoption of the memorandum of understanding. Madam Chair, at the appropriate time I would ask unanimous consent of my colleagues to have these remarks that I've made reduced in writing and placed in the minutes of the meeting.  
 We might as well handle that now. We have Yaniv's consent?  We have unanimous consent. 
 Thank you.  
 Thank you for the statement.  
 Thank you, Madam Chair. I look forward to supporting the adoption of this memorandum of understanding. Which is taken a lot of people a long time to negotiate and I think it is a good one. I appreciate everyone's compliments, but I cannot take a lot of credit for, as much as I would like to. I was happy to work with my colleague, the vice chairman, on the ad hoc subcommittee. And a very much appreciate his engagement and work on this. But, I really have to give most of the credit to the staff, Mr. Kitcher and staff in particular who really did the bulk of the work here. In very good work it was.  I also want to thank -- I don't want to leave the impression it was just the vice chairman. The chair has been enthusiastically pushing this forward this year. As did the previous chair in the chair before that. I think most of my colleagues have been very engaged in the process and supportive of it. We are charged with civil enforcement of a body of laws, the Justice Department is charged with criminal enforcement of the same body of laws, I think our ability to work together will enhance both of us in our discharge of our duties under the law and Constitution. I am really pleased with many features of this agreement. Of course, I am sure there will be times when we get into the details of particular matters where we will have to work things out as we go. But, I want to echo one of the important points the vice chair made and that is that the Department of Justice has throughout these negotiations treated us as a peer, and that has not always been the case. I can tell you that there are various reasons why negotiations have faltered in the past. I don't want to state was all one-sided. There were things that were going on at the Commission that made it harder  to get to agreement in the past, but I think one key distinction, this go around the helped make this happen is, there was a real commitment on the part of high-level people of the department of justice to get this deal done and to work with us in a fairway. The vice chairman and I had a meeting last year with some of the senior leaders on this project at the DOJ, that was at their request, they asked to meet with commissioners and I cannot recall that having happened before. And Rob and Sean, Richard who is now retired, there are so many people at DOJ who were involved in the drafting and thoughts that went into this. I really want to give the DOJ team a lot of credit for their interest and respectful of the way they treated us, we are a small agency with a fraction of their staff and resources and I really appreciate, as I said, the peer relationship that they seem to be encouraging. I think people want to see laws fairly and effectively enforced. They can work better together to do that and this I believe the beginning of a beautiful friendship. Going forward. Sorry, it's one of my favorite movies. Again, with great thanks to everyone at the table and particularly our excellent staff for their excellent work on this, I look forward to supporting these documents. Thank you.  
 Any further discussion?  
 Briefly, and I'm not going to repeat everything that has been said, excellent work by the staff, Mr. Kitcher, you deserve all the praise you have been receiving. This has been  a bipartisan priority going back, I'm grateful to my colleagues for getting across the finish line. I think it's a big deal not really because of the merits but because it's another data point of the ability of the Commission  to accomplish things. The may not have been obvious a few years ago. And, and personally very proud of that. It's a pleasure to work with people who are committed to finding common ground when we can. I did have one quick comment on the merits. I'm not going to leave everyone in suspense, I do plan to vote for this, I suspect it will be adopted. But there is one aspect of this that bears note. The vice chairman already said this but I want to emphasize it. This sets up the relationship between us and a sister agency. It has been noted that is a sister agency they treatise is a much younger sibling. This is an effort to sort of regularize that. It doesn't change statutory discretion and upper Galatians the Commission has to make case-by-case determinations.  And so, I share a number of the concerns that were raised. Think of worse violations including the federal election campaign act before it was modified, by the way. But, the concern about the ways in which the Commission abates enforcement matters  are real and legitimate. But, of course, that is something we have some control over. The department of justice can request abatement. We granted the department of justice can request documents, the conditions are made, that is a decision made on a case-by-case basis. And so, respectfully, I do think there is merit to that concern. I think it is an iterative process that will have to be dealt with case-by-case. Over time. The tried-and-true manner of the common-law. Have a great deal of faith this crop of commissioners will be able to put some ballast into that ship. Thanks to my colleagues, I look forward to bringing a relationship with the department of justice forward almost a half-century.  
 I will close this out with thanking my colleagues in adopting much of what all my colleagues have said today. But I think one of the things I want to highlight is we have just heard is that we have all used phrases we like, so I will say it is a reminder of a new day at the FEC in a sense that we are working together bipartisan to get things accomplished. But I think the most important comment to close this out is to thank DOJ and our staff, Mr. Kitcher sitting next to me. All the hours put in over the course of the last couple of years  that may have felt that at times it might not come to a result where we are today. So kudos to you and the team, the names have been called out. It never hurts to announce it again and again. Your work is greatly appreciated and this will accomplish many positive things going forward for the agency. Thank you.  
 Okay, wonderful. Without any motions?  
 Vice chair.  
 Thank you, Madam Chair. With respect to the memorandum of understanding between the Commission and the department of justice  and accompanying Federal Register Notice I move approval of agenda document 23-08-a.  
 Any discussion?  All those in favor?  The motion passes by 5-1. With the vice chair. I'm excited to sign this. I get to sign the Federal Register Notice. Thank you. All right, moving on to the final element of our exciting and meaty agenda, the press office acknowledgment of complaints memorandum from Commissioner Dickerson. I will give everyone a moment to get settled. With that I will pass this on to you.  
 Thank you. I really really hate going after something like that. But the chair sets the agenda. This policy implements a legal recommendation over Office of General Counsel from 2006. It is intended as a ministerial action to take up and resolve a question that appears to have fallen through the cracks for nearly 17 years. It should not reflect on the press office, which has been diligently pulling its own policy in the absence of Commission guidance. The Commission has waived its privileges with regard  to the 2006 memorandum available on their website. And that allows the public a window into our reasons for considering this policy and I hope taking it up. I want to highlight two points. First, as a memorandum notes, this does not affect the ability of complaint and's to discuss their complaints with the public and the press. Existing advisory opinions party protect the conduct. And I would add to personally that a country rule raised significant constitutional difficulties. Obviously complains publicly discussing their own complaints are engaged in First Amendment protected speech. I would add that criticism of this Commission and its members,  even when uninformed and hyperbolic. Is a matter of constitutional avoidance, I do not believe our confidentiality rules permit complainant from engaging in these discussions and advocacy even in the absence of any advisory opinion. I would expect to vote accordingly in any Forstmann action. Second, as the memorandum emphasizes, confidentiality as a protection for respondents. There are policy arguments for why a given respondent may prefer the week confirm the filing of complaint. These arguments might be foreclosed by the regulation. More importantly there also paternalistic because the confidentiality protections are entirely in the respondents hands. If particular respondents wish the Commission to confirm or deny the filing of a complaint  they need merely waive the confidentiality rights. With that introduction in deference to my colleagues in the questions, and prepared to offer emotion. 
 Thank you. Colleagues, any discussion?  
 Thank you, Madam Chair and thank you to Commissioner Dickerson for bringing this before the Commission.  I appreciate comments you made about complaints, that was my number one concern. Even having heard Commissioner Dickerson's comments, I have to say I still have some concern about the regulation which I think frankly goes beyond the statute. Mentions completes, notifications, I think expanding on that statute is ill advised. But it is a regulation lawfully under books. So the question is, what is the best meaning of that. What does it actually mean?When it says no complaint filed with the Commission,  may be made this and& And there, shall be made public by the Commission to provide any person  or entity without the written consent -- that seems a very broad statement. As I said, I am somewhat -- I'm happy to hear Commissioner Dickerson say that he also thinks there would be First Amendment concerns if we enforce that. Against the complaint. The right to criticize the government -- against people who are in office are the heart of the First Amendment. I do worry, that's what the relation kind of says. I think the wording of the regulations is problematic. Having said that, I go back to -- a complaint is a document. A series of words on pages. That have meaning. I'm not ultimately convinced. I thought about this long and hard. I am not ultimately convinced that it is making the complaint public to state whether the complaint has or has not been filed. I think that the solid reasons why -- it's clear to me it's good policy to say the existence of the complaint and weather has been filed is something that is either affected by this regulation or best from the public. Has been a clear policy dating back to pretty much the origin of the Commission.  It's something the Commission  had well before my time. That it was appropriate to either confirm or deny the existence of a complaint usually comes up with a reporter asking, so-and-so said they filed a complaint against this other person. If you're in a position to confirm or deny that, we can also ward off rumormongering and conspiracy theories by people who say they filed a complaint but actually did not, but did not have a basis for jumping through all the hoops to get it notarized and sign the complaint, they just want to cause trouble for someone out there. An interesting legal question I was thinking about this morning. If there isn't actually a complaint and therefore isn't actually respondent, confidentiality when they are not indeed a responded. That would be an unfortunate interpretation over an actual complaint -- I think that the transparency mission of the Commission  has to be balanced against confidentiality obligations of the Commission under statute.  The statute like I said doesn't touch this regulation. But, -- that covers the content of the complaint itself, the document. As I said, I thought long and hard about this.  
 Further discussion?  
 I think it would be more appropriate to move construction to the press office than the agenda document.  
 Yes. 
 Thank you.  
 In that case I move that the Commission direct  -- in response to future inquiries.  
 All those in favor?  
 All opposed?  The motion passes by a vote of 4-2 Mr. staff director are there any matters that need to be discussed?  
 There are no such matters.  
 This concludes our open agenda. Thank you all for a great meeting today. And we stand adjourned. 
 [ Event Concluded ]