FEC Reduced to Offering Advice

Chairman David M. Mason, a Republican, says decisions provide guidance if both members agree.
Chairman David M. Mason, a Republican, says decisions provide guidance if both members agree. (Federal Election Commission)
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By Matthew Mosk
Washington Post Staff Writer
Wednesday, January 9, 2008

Down to two members and unable to muster a quorum, the Federal Election Commission has decided to offer advice instead of binding decisions on questions from political campaigns.

This week, organizations with pending requests for decisions from the six-member FEC on campaign matters received phone calls from agency staffers letting them know not to expect formal rulings anytime soon.

The groups were told that the FEC's two remaining members will hold a public hearing Jan. 24 to share their informal views on the requests. The board lacks the four votes needed for the commission to take official action on a number of matters, including enforcement cases.

"For those things that require four votes, we'll take them up to the point where that requirement for a vote is triggered, and then put them on hold," said FEC Chairman David M. Mason, one of the two remaining members. "Work, I'm afraid, will continue to back up."

Bob Biersack, an FEC spokesman, said: "The staff will go ahead and draft an answer and the two members will discuss those drafts. Hopefully, in a way, that gives some kind of guidance without saying, 'This is the position of the commission.' "

The advice offered collectively by Mason, a Republican appointee, and Ellen L. Weintraub, a Democratic appointee, will not be binding. "It won't give them explicit legal protection," Mason said. "But if we both say no, or both say yes, that should provide some guidance."

When operating with a full complement, commissioners routinely undertake enforcement cases and audits of political committees, among other matters. They need four votes to launch such reviews, four votes to find probable cause, four votes to reach a settlement, and four votes to file suit in court.

Contested cases from late last year -- those that resulted in disagreement among FEC board members -- are in limbo, Mason said. And more of them are stacking up every day.

The four vacancies are the result of a standoff between President Bush and Congress over one of Bush's nominees, Hans A. von Spakovsky. His critics contend that during his tenure in the Justice Department's civil rights division, von Spakovsky advocated a controversial Texas redistricting plan and fought to institute a requirement in Georgia that voters show photo identification before being permitted to cast ballots.

In the meantime, work is piling up. The FEC's 375 auditors, lawyers and investigators continue to collect and compile campaign finance disclosure reports and process other work that was underway last year, but a variety of matters that fall to the commissioners have been placed on hold indefinitely.

Campaign law allows politicians or political groups to seek formal FEC opinions so they can act with certainty and avoid later legal trouble. The FEC is supposed to respond to such requests in 60 days.

This month, the FEC was scheduled to issue rulings on four such matters, including whether Sen. Pete V. Domenici, R-N.M., may use campaign funds to pay outstanding legal bills and whether the conservative group Club for Growth needs to identify itself as the sponsor of radio ads that are just 10 seconds long.

Bradley Smith, a former commissioner and a campaign law expert who represents one of the groups with a request pending before the FEC, said the agency's predicament is frustrating.

"A lot of us, even those of us who tend to be skeptical of the law and would like to see the FEC do a lot less, are not enjoying this," Smith said. "As long as the regulations are there, they ought to be functioning."

Smith represents a group called SpeechNow.org, which is seeking advice on whether individuals can band together to advocate for or against federal candidates without being subject to the contribution limits imposed on political committees under federal law.

Smith said he may treat the FEC's inability to provide an opinion as a denial. That, he said, could prompt him to sue the commission for "chilling our client's constitutional rights.

"I don't mind seeing it in court if that's what we have to do," Smith said, though he acknowledged that would cause delay. "Our client would rather get out there and run ads."


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