In a 21-page memo written before he left, Herman argued that the proposal would also disrupt communications in the other direction, limiting the ability of FEC staff members to obtain information quickly from their Justice Department counterparts, and could expose the agency to allegations of partisan decision-making.
The commission could vote on the enforcement manual as early as its next public meeting, scheduled for July 25.
The six-member panel is currently short one Democratic commissioner. Last month, President Obama nominated one person to fill the vacancy and another to replace McGahn. The nominees have yet to be confirmed by the Senate.
In a letter to the FEC on Friday, Americans for Campaign Reform and two other advocacy groups, Democracy 21 and Campaign Legal Center, said that the proposed measures would impose a “gag rule” on the staff and that McGahn was engaged in “a lame-duck power play.”
McGahn said action is urgently needed because the agency is operating without clear rules.
In one recent case, he said, the general counsel’s office alerted prosecutors to a possible criminal violation by Arlen Cenac Jr., the owner of a Louisiana truck company who made illegal campaign contributions in the name of others. Such a referral requires commission approval, which the staff did not seek, McGahn said.
The FEC settled the case with Cenac for a $170,000 fine, but the commissioners did not vote to refer the matter to the Justice Department, which later prosecuted him for making false statements to the agency.
Herman said the general counsel’s office did not initiate any referrals to the Justice Department on its own and has been “fully transparent” with the commission. He said he instituted a policy in April requiring that commissioners be told about all information shared with prosecutors after he learned that the staff had not done so consistently.
Herman said he decided in April to leave the agency and return to private practice at the firm of Covington & Burling, where he had worked for 23 years before joining the FEC in 2011. He declined to say what led to the decision.
“I had accomplished what I set out to accomplish, as much as I could,” Herman said. “It was time to go back home.”