The top Democrat on the Federal Election Commission continues to insist that FEC staff attorneys have no political bias, despite an ongoing feud that revealed a sharp political divide when the agency’s Office of General Counsel recommended punitive action against Fox News.
The six commissioners split in that case along party lines, which meant no action was taken against Fox for its move to expand one of the GOP debates. But in the aftermath, Democratic FEC Commissioner Ann Ravel noted that the OGC concurred with Democrats, and twice emphasized its objectivity.
“I agreed with the recommendations made by the agency’s nonpartisan Office of General Counsel,” Ravel said in her three-page opinion. Two paragraphs later, she deferred to the “nonpartisan” office’s conclusion in the case, in which it said “the record reflects [Fox News] used candidate-selection criteria designed to result in the inclusion of certain pre-chosen candidates … criteria that in context were neither objective nor pre-established.”
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The OGC is tasked with analyzing cases that come before the agency, and making recommendations to commissioners before they vote. While Republicans see the OGC as biased, some Democrats argue that Republicans aren’t interested in upholding the law the way Democrats are.
“My understanding is that more often than not, Democrats are voting with the recommendation of the nonpartisan OGC, but the Republicans do not,” said Jessica Levinson, a professor at Loyola Law School and the Democratic president of the Los Angeles Ethics Commission. “I believe some of the … Republican members have said they do not agree with the applicable campaign finance laws and do not wish to apply them.”
But Republicans argue that the staff has an improper view of the law. Hans von Spakovsky, who served on the commission under President George W. Bush, said that was the case even a decade ago.
“I apparently picked up the nickname of ‘The Red Baron’ inside the FEC because of how severely I cross-examined the staff of the general counsel’s office when I was questioning their legal analysis on cases,” said Spakovsky, who now works as a senior legal fellow at the Heritage Foundation. “I thought many of them had a partisan bias in favor of Democrats and I often thought they were too restrictive in their interpretation of the law, particularly when it was ambiguous, and they had little sensitivity to the First Amendment considerations that affects all campaign finance regulation.”
The takeaway, Spakovsky said, is that the agency should not add to the pretense of “nonpartisanship.”
Ravel, who headed the agency as its chair last year, has led a call for one of its six members to be removed. The five-member agency that would replace the current one, Ravel suggests, would include one “nonpartisan” member, with the remaining four split between Republicans and Democrats.
“This very pointedly points out what a disaster Ravel’s proposal to have a five-member commission would be,” Spakovsky said. He said the proposed action against Fox News would have been an “offensive violation of basic First Amendment activity,” and that it was only avoided because the commission is split.
As an administrative arm of the FEC, the OGC is precluded by commission rules from offering public comment on the issue. But observers on both sides of the aisle praise its current chief, Acting General Counsel Dan Petalas, for generally working well with both parties. In a statement, Ravel emphasized his reputation for evenhandedness, and said the claims of bias among dozens of other attorneys who comprise the agency’s professional staff were overblown.
“The [OGC] does not hire on the basis of partisan or ideological affiliation,” Ravel said. “The FEC’s acting general counsel has been unanimously — by all six commissioners — selected and reappointed three times.”
“As chair last year, I joined the then-vice chair [a Republican] in praising the acting general counsel’s qualifications in a press release,” Ravel added. “OGC’s role is to provide its very best nonpartisan legal advice on each case before it. There have been many occasions where OGC’s views have differed from the views of the commission’s … Democrats, just as it has differed from the commission’s … Republicans.”
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Though the issue has been largely restricted to the milieu of Washington politics, it’s one that could grow in the days ahead. Democrats have made the prospect of restructuring the FEC a growing part of their party’s official position, particularly after Ravel twice traveled to the White House to meet with President Obama in January. And a proposed draft of the Democratic Party’s 2016 platform issued last month calls for an “overhaul” to “strengthen” the agency and ensure “real enforcement.”
Contrary to the skepticism expressed by Spakovsky, Levinson said the idea of reforming the agency had merit. “I think it makes a great deal of sense to make the commission an odd numbered body. There is a reason that appellate courts, not to mention the Supreme Court, have an odd number of members.”
On the point that “nonpartisan” members tend to align with Democrats, Levinson said, it is simply a reality of Washington politics. “The commission is divided evenly between Democrats and Republicans and often deadlocks,” she said. “So when the nonpartisan OGC has a recommendation, there is a real chance that half of the commission will not agree.”
