Wednesday, February 25, 2009, 3:39 PM

Political GPS: What Are The FEC’s Priorities?

If you’re wondering about the FEC’s rulemaking priorities, a proposal containing a full year's worth of projects is posted on the Commission’s website. The document indicates that a public vote by the full Commission is scheduled in February.

The date of this document? February 16, 2007. Four seats on the Commission have turned over since then.

This proposal lingers on the FEC's website, a reminder that what used to be an annual announcement hasn’t occurred in two years. Of course, the lack of a priority document doesn't preclude work from proceeding on important rulemaking projects. But it is unfortunate, because a public vote on rulemaking priorities promotes transparency and accountability. It can also be a valuable exercise by making members of the six-member panel accountable to one another and helping agency staff remain on track amid a sea of competing demands.

The Commission has previously set priorities in other areas, too. For instance, the FEC has stressed the importance of reducing the length of time for processing complaints. In a statement issued near the end of 2006, the Commission announced that case-processing time had declined from earlier years by nearly one-third, and that 85% of complaints were being resolved within two years. It’s unclear where this concern fits among current priorities. In fact, as the Commission actively considers adding procedural steps to the enforcement process, it is important to hear the agency’s views about the trade-offs between fairness and efficiency.

Civil penalties have been another vehicle for setting priorities. Over the past few years, the Commission has targeted certain violations for higher penalties and underscored its concern through strongly-worded, public statements. For instance, the Commission called its nearly $4 million settlement with Freddie Mac a “clear signal” that the use of corporate or union resources to facilitate fundraising will have "real consequences." Lately, the Commission hasn’t said much about its enforcement priorities, and recent descriptions of closed matters can be a challenge to decipher.

We applaud the Chairman's recent announcement that he wants to make vast improvements in the FEC’s website. It's a matter that deserves attention. A good start might be taking down from the website the priorities for 2007, and telling committees and other organizations regulated by the Commission what they can expect this year.

PRESIDENT’S NEW ETHICS RESTRICTIONS EASED . . . JUST A BIT

The Office of Government Ethics recently issued guidance loosening, if only a bit, the President’s January 21 Executive Order, which prohibits Administration appointees from receiving many kinds of gifts from lobbyists and their employers. Under the order, Administration appointees must live by tighter gift restrictions than other executive branch employees.

OGE Director Robert Cusick recently clarified the new Executive Order in "interim guidance" developed in "consultation with" with the White House Counsel’s Office. This new guidance ostensibly ensures that officials are permitted to accept gifts that do not "implicate the purposes of the ban." Now, the more lenient government-wide gift rules, rather than the President's order, will apply to Administration appointees with respect to gifts from 501(c)(3) organizations and media organizations. As a result, Administration appointees can, for example, accept nominal gifts valued under $20 and invitations to widely-attended events from these two types of organizations, but only if the gift is not offered personally by a registered lobbyist.

Just this week, Mr. Cusik issued additional guidance that permits a lobbyist whose pre-appointment lobbying activities are "de minimis" to accept a position at the agency he lobbied and to handle issues on which he lobbied. Director Cusik cautioned, however, that such waivers of the Executive Order will be issued sparingly and will be limited in scope.

These relatively modest reinterpretations of the Executive Order represent a tacit acknowledgment that the realities of running a government frequently collide with the aspirations for it.

JUDICIAL PAY-TO-PLAY? SUPREME COURT TO CONSIDER IMPACT OF CAMPAIGN CONTRIBUTIONS ON ELECTED JUDGES

Imagine that your business successfully won a $50 million jury verdict. Then you learn that the defendant’s CEO spent more than $3 million of his own money to help elect one of the five judges who will hear your case on appeal. What if that one judge refuses to recuse himself, and then casts the deciding vote in a 3-2 ruling to toss out the verdict?

The Supreme Court will hear arguments next Tuesday in Caperton v. A.T. Massey Coal Co., which concerns a West Virginia Supreme Court of Appeals judge who refused to recuse himself under just these circumstances. The Court is being urged to lay down a constitutional rule dictating when an elected judge has received so much support from a litigant that he or she no longer appears impartial.

The case highlights growing concerns about the explosion in spending on judicial races, fueled largely by special interest groups. According to a report issued by the non-partisan Justice at Stake Campaign, candidates for America’s highest courts raised over $165 million between 1999 and 2007, a jump from $62 million raised between 1993 and 1998. The Supreme Court will have to decide whether there’s a federal due process right that trumps the discretion normally reserved to the states in this area, and if so, how to articulate a workable standard. We expect a ruling by June.

FEC BUNDLING RULES: UPDATE

The FEC announced this past week that its revised FEC Form 1 (Statement of Organization) will be released in early March. PACs controlled by lobbyists ("lobbyist/registrant PACs") and leadership PACs will have to designate themselves as such on the new form. The FEC also clarified that these PACs must file the new form by March 29. The Federal Register notice publishing the new rules erroneously indicated that the filing date is March 30. Since March 29 is a Sunday, committees obligated to file a new FEC Form 1 will likely want to make the filing by Friday, March 27.

If you have any questions, comments or would like to schedule a consultation, please feel free to contact Larry (LNorton@wcsr.com, (202) 857-4429) or Jim (JKahl@wcsr.com, (202) 857-4417).
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