Republicans on the evenly split Federal Election Commission are pushing for new transparency rules hoping to put a spotlight on Democratic stalling tactics.
The effort targets a power play by Democratic Commissioner Ellen Weintraub, whose six-year term ended in 2008 but was never replaced. She is behind a new trend at the agency to keep open enforcement cases that Republicans vote against in 3-3 ties and then block the FEC from defending itself when the cases go to court for resolution.
“I’m using the small amount of leverage that I have,” she told the New York Times. “It’s not a lot,” she added of her strategy, which the New York Times suggested was in retaliation for growing GOP partisan tactics.
By not closing enforcement cases that are essentially dead in a 3-3 tie, those involved can go to court and claim the agency isn’t doing its job. By not defending itself and revealing actions taken in cases, judges are left in the dark on how to rule.
Republican Commissioner Sean Cooksey called those cases “zombie matters” and said they have increased 225% in the last year, from four to 13.
“This practice has several harmful and predictable consequences,” he said in a proposal to require that the agency start revealing which cases are zombies and the actions taken on them.
“By failing to disclose our adjudication, the Commission is left vulnerable to a lawsuit under 52 U.S.C. § 30109(a)(8), whereby complainants (often ideologically driven organizations) can attempt to bypass our agency and pursue enforcement and regulatory changes through litigation. If the Commission does not appear in court to defend itself in a lawsuit — a scandalous and largely unheard-of behavior — the reviewing court is left ignorant of the Commission’s action and views, and the Commission is subject to a default judgment. Meanwhile, respondents are left to their own devices to intervene and defend their positions in court,” he added.
Other than stymieing the agency further and tying up enforcement actions Republicans reject, it is unclear why Democrats are pursuing the zombie tactic.
However, some observers have suggested that they want to keep the cases pending should liberal election reform proposals make it through Congress that might give Democrats a majority on the FEC, which was designed to be evenly split between Democrats and Republicans. That legislation would cut membership to two Democrats, two Republicans, and an “independent.” But with Democrats controlling Congress and the White House, it is assumed an independent would vote with Democrats.
Another reason suggested is to push cases to courts and have judges rule on enforcement matters.
Lee Goodman, a past Republican chairman of the agency, said that is wrong: “Courts now are on notice of this problem in the agency. The problem with the strategy is that it fundamentally rests on dishonesty, that is concealing a fact from the courts.”
He added, “The agency is defaulting and concealing, actively concealing, from the court the actions that it has taken. It’s a real issue playing out in federal courts right now.”
In hopes of getting his changes through, Cooksey is calling for an amendment to Directive 68, reforms first pushed in 2009 by Democratic Commissioner Steven Walther, whose six-year term ended in 2014 but who has never been replaced.
That directive brought sunshine to the agency, and Cooksey is seeking to build on that.
“That’s what Commissioner Cooksey’s Directive 68 proposal gets at — more transparency about where the cases actually stand inside the agency,” Goodman said.
It would essentially add a new category to regular reports that the FEC issues on cases.
Cooksey’s memo, shown below, said, “This reported data will serve as an important tool to inform the public about the Commission’s activities that would otherwise remain hidden, and thereby will promote greater accountability for the agency’s enforcement work. Those outside of the FEC — including federal courts, policymakers, the regulated community, and the general public — will be able to assess trends in the number of zombie matters and judge the FEC and Commissioners accordingly. As a federal agency sworn to uphold the law and serve the public interest, the Commission has no legitimate interest in obscuring or hiding these activities from scrutiny.”
