Rep. Gregg Harper, chairman of the House Administration Subcommittee on Elections, on Thursday told the Federal Election Commission to turn over key documents or risk a subpoena.
After a seven-year lapse in oversight, the House Administration Committee has renewed its interest in policing the Federal Election Commission — and among its first actions could be issuing a subpoena.
On Thursday, at the first House Administration Committee oversight hearing on the FEC since 2004, Subcommittee on Elections Chairman Gregg Harper (R-Miss.) said the agency has refused to make public its enforcement guide, the schedule of penalty formulas for fine proceedings and its manual outlining how officials police those who break election law — called the Reports Analysis Division manual.
Harper told the six FEC commissioners testifying before the panel that they would have 10 business days to turn over the documents before the full panel exercises its subpoena authority to compel the commission to do so.
“To be clear, this is the second and last time we will ask for these documents. The third request will be in the form of a Congressional subpoena,” Harper said. “Your unwillingness to release these documents contradicts and ultimately hinders your agency’s core mission [and] makes your praise of transparency seem disingenuous.”
It is unclear whether the FEC will be able to turn over the documents in time, though the commissioners expressed willingness to see if it were possible.
The penalty schedule has not been formally updated in many years, the commissioners explained. Rather, updates exist in the form of internal memos and emails. They also emphasized that each case is idiosyncratic and there is no cut-and-dry approach to penalties, contrary to what an official document might suggest. Releasing a document suggesting that such an approach exists might lead to confusion, they fear.
The FEC is also prone to partisan and philosophical deadlock, with three Democratic and three Republican commissioners who need a majority consensus to move on any measure.
“We don’t always agree on what the schedule should say, and there have been many debates where commissioners do not agree on what the penalties should be,” said Democratic Commissioner Ellen Weintraub. “I have long advocated that this should be made public.”
While releasing the penalty schedule could be feasible, disclosing the RAD manual is likely to meet internal obstacles as some commissioners believe it contains information that must remain secret.
"There is parts of [the RAD manual] that I think are part of the enforcement processes of the Federal Election Commission," said Republican Commissioner Donald McGahn. "As part of the enforcement processes, that is something that should remain confidential. There are parts that may constitute a form of secret law, and if they're secret law, that ought to be public. Right now, the current manual I think is a hybrid of the two. So to simply turn it over in total I think would cause some issues because I think we would be giving away some of the internal deliberative process privilege or some of the enforcement triggers."
McGahn told Roll Call after the hearing that he was “optimistic, but not confident” that the six commissioners could reach an agreement in 10 days on what to submit to the Committee.
Regardless of how the FEC chooses to proceed, Harper has promised that the Congressional committee charged with overseeing election law will remain vigilant in its future oversight of the commission accused by Democrats and campaign finance watchdogs of shirking its duties.
Lawmakers expressed particular concern Thursday about the FEC’s ability to oversee election law in a rapidly changing legal landscape, particularly nearly two years after the Supreme Court handed down the landmark Citizens United decision.
“There is a whole host of disturbing financial shenanigans, and I am eager to hear what the FEC is doing about it,” said Subcommittee on Elections ranking member Charlie Gonzalez (D-Texas).
A coalition of government watchdog groups took a different approach Thursday, calling not on the FEC to change its ways but instead for Congress to replace the FEC entirely with a new oversight agency.
The groups, which include Democracy 21 and the Campaign Legal Center, also called on President Barack Obama to appoint new commissioners. Five of the six commissioners have expired terms and are ineligible for reappointment, but they can continue to sit on the commission until replacements are confirmed.
Obama has not yet nominated a commissioner to replace any of the “lame duck” members.
“Nothing will change at the FEC until you begin the process by exercising your executive branch responsibility to nominate new FEC Commissioners,” the groups wrote in a letter to Obama. “In this sense, the national scandal at the FEC is currently your responsibility.”
These groups also criticized the House Administration Committee for holding a “sham” oversight hearing that did not draw on a range of perspectives but rather just those of the FEC commissioners.
Committee spokeswoman Salley Wood said there would likely be more hearings to come.
Clarification: Nov. 3, 2011
This story has been changed to add the name of the Reports Analysis Division manual.
Correction: Nov. 4, 2011
An earlier of this article had an incorrect quote attributed to Commissioner Donald McGahn, which misstated the commissioner's concerns about releasing the RAD manual.