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Group sues Federal Election Commission, saying its slow response limits appeals

By Dan Eggen
Washington Post Staff Writer
Thursday, August 12, 2010; A13

A prominent Washington advocacy group filed a lawsuit Wednesday against the Federal Election Commission, arguing that the panel routinely makes it impossible to appeal its decisions.

In a lawsuit filed in U.S. District Court for the District of Columbia, Citizens for Ethics and Responsibility in Washington identifies at least nine cases over the past two years in which the FEC dismissed complaints but did not provide enough information about the decision to allow a legal challenge.

The FEC is required by law to provide details promptly so parties in such disputes can meet a 60-day deadline to file an appeal in federal court, according to the lawsuit. But the commission frequently defies this requirement by delaying or never releasing information about cases it drops, the lawsuit says.

"The FEC's pattern and practice of knowingly failing to issue a statement of reasons or other explanation for its action within 60 days of dismissing a complaint, effectively preventing complainants from seeking further judicial review, is arbitrary, capricious, an abuse of discretion, and contrary to law," the lawsuit alleges.

Three of the cases identified by CREW involved the group itself, plus six more involving other plaintiffs allegedly stymied by the FEC's sluggish and opaque process.

An FEC spokeswoman said it was agency policy not to comment on pending lawsuits.

Although it centers on arcane technical issues, the lawsuit also underscores broader complaints from reform groups about the FEC, which has struggled to reach decisions in recent years amid persistent disputes between three Republicans and three Democrats on the panel.

The agency's troubles have spilled over into the political appointment process as well: Last week, the Obama administration quietly announced that it was withdrawing its 15-month-old nomination of labor lawyer John J. Sullivan for a seat on the board amid bipartisan opposition. Three of the panel's current commissioners are serving beyond their scheduled departure dates.

The FEC's often laggardly pace is illustrated by many of the cases outlined in the lawsuit. One complaint filed by CREW against former California GOP congressman Duncan Hunter wasn't concluded for three years -- long after the candidate had shuttered his presidential campaign and left Congress.

Melanie Sloan, a former federal prosecutor who serves as the advocacy group's executive director, said the FEC is "clearly a broken agency."

"Candidates can freely break campaign finance laws to gain an edge in a federal election without any fear of repercussions," she said.

Ethics appointment criticized

After the White House announced it was consolidating its ethics team under White House Counsel Robert Bauer, 11 watchdog groups released a joint letter praising President Obama for "taking quick action to provide senior leadership on the issues of ethics, transparency and accountability."

But now one of the signers is retracting her support. Ellen Miller, executive director of the Sunlight Foundation, wrote a scathing blog post on Tuesday attacking Bauer's record of reform and alleging that "the critical transparency policies supported by the Obama Administration are now wavering."

The dispute has come to a head because of the pending departure of special ethics counsel Norm Eisen, a longtime Obama friend who has been nominated as U.S. ambassador to the Czech Republic. The White House announced last week that Bauer will take over leadership duties for the ethics portfolio, while Michigan law professor Steven P. Croley will assume day-to-day responsibilities for a team of six lawyers focused on ethics and transparency.

The team will "hold administration officials to their ethics obligations" and "ensure that government serves the American people, not the special interests," Bauer said in a statement.

But Miller views the changes as detrimental and is particularly critical of Bauer, who sometimes clashed with campaign-finance reformers during his time as a Democratic campaign attorney. Fans of Bauer say Miller's attack is both inaccurate and unfair.

"I just don't think his DNA for this position matches what the administration would want," Miller said. "But I've told the administration I'd be happy if they prove me wrong."

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