The turf war erupted in connection with an effort to establish a formal FEC enforcement manual for the first time, a step urged in 2011 by the House Administration Committee, which oversees the agency. The GOP commissioners proposed several revisions to a draft prepared by the staff. The changes would limit attorneys to consulting government Web sites when researching the merits of a complaint before the commission had authorized a formal investigation. The use of other common resources would not be permitted, including media reports, business databases, Internet search engines, social media services, YouTube videos and candidate Web sites.
The proposed restrictions are viewed dimly by many election law experts.
“That’s just ridiculous,” said campaign finance lawyer Kenneth Gross, a former FEC associate general counsel. “To hamstring staff from taking into account information out there in the public arena makes no sense. I’ve never heard of such a thing.”
McGahn said his concern is that FEC attorneys are asking the subjects of complaints to respond to allegations made in “speculative and unreliable” news articles and blog posts.
“It just doesn’t have any standards and, therefore, allows for a form of selective prosecution,” he said. “It’s left to the whim of an individual line attorney to decide how much he’s going to probe somebody.”
The most-charged debate has been over how the FEC should interact with prosecutors. Under federal law, four commissioners must approve any “referral” or “report” of possible campaign-finance violations to the Justice Department. The Republican commissioners say the rule should also apply to the sharing of internal documents requested by the Justice Department or other government agencies.
In their proposed revision of the enforcement manual, the Republicans added language stating that “the decision of whether or what to share with DOJ will rest exclusively with the Commission.” The Justice Department would have to submit written requests or subpoenas to the panel when seeking internal records.
In recent years, cooperation between the two offices has increased. FEC staff members have provided prosecutors with materials they had requested related to several major cases, including an investigation into illegal contributions to Rep. Vern Buchanan (R-Fla.), Herman told commissioners in a memo last month. A Justice Department spokesman declined to comment on how the proposed policy would affect its investigations.