Ashcroft Complaint Languishes at the FEC

Posted February 5, 2003 at 6:22pm

Nearly two years have passed since the National Voting Rights Institute, the Alliance for Democracy, two Missouri voters and others filed a complaint with the Federal Election Commission against former Sen. John Ashcroft’s (R-Mo.) failed 2000 Senate campaign — but where the case stands is anyone’s guess.

The complaint, which asked the FEC to investigate whether the sitting attorney general had violated any federal campaign laws when his Spirit of America leadership PAC donated a valuable fundraising list of 100,000 donors to the Senator’s official campaign committee that helped it raise $116,000, has never seen the light of day.

The aging complaint has neither been resolved nor dismissed by the watchdog agency. Now the FEC’s refusal to provide any substantive information on where its investigation into the Ashcroft matter stands is at the center of a brewing legal dispute between the aforementioned groups and the FEC.

“This issue is particularly timely because with the increased attention on the FEC it’s just so apparent that they don’t do their job of making sure the laws are enforced,” said NVRI attorney Lisa Danetz, who is suing the FEC for its failure to act on the Ashcroft case.

“It doesn’t really matter what campaign finance laws we have on the books if the FEC refuses to enforce them,” Danetz added, “because politicians, or PACs, or whoever can feel pretty free to ignore the law.”

Moreover, Danetz and her allies are concerned that the last course of action for citizens trying to make sure the FEC is enforcing the campaign law — so-called “failure to act” suits — could be rendered pointless if the FEC gets its way in federal court.

Danetz said she and others who filed the original complaint with the FEC waited for months to see if the agency would act on the complaint, but said they were not prepared to sit by passively forever.

In March 2002, Danetz and friends filed suit against the FEC, as they are entitled to do 120 days after a complaint is filed, if they believe the FEC is not doing its job.

But that ongoing lawsuit has proved equally frustrating to Danetz and others involved in the case, as the FEC has produced little in the way of discovery.

Beyond a basic chronology of FEC investigatory activity on the complaint, the FEC has disclosed nothing pertaining to its actual investigative findings.

Indeed, the FEC is bound by a statutory confidentiality provision that requires all evidence in an investigation into alleged campaign finance violations to be held under wraps while that probe is pending.

A recent U.S. District Court decision in AFL-CIO v. FEC blanketed all FEC enforcement cases in a sort of state of suspended secrecy when a federal judge ruled that virtually all information collected by the FEC in enforcement matters must remain sealed even after the matter is closed.

The FEC is currently appealing that decision, and agency officials declined to provide comment for this article. Under federal statute guidelines, the FEC does not discuss ongoing enforcement matters and as a matter of policy, they do not comment on ongoing litigation.

Other methods of trying to obtain information about the case have proved fruitless.

While the court ruled last fall that Ashcroft could release the documents related to his own campaign finance case if he so wished, the attorney general has shown no interest in doing so.

Danetz said she wrote letters to the attorney general and asked him to provide her group with documents and other pertinent information related to the FEC’s investigation, but that she never heard from him.

In 2001, an Ashcroft aide told the Washington Post that “all activities involved in handling the list were in accordance with FEC guidelines.”

Former FEC Chairman Trevor Potter believes that the agency’s unwillingness to make public in any forum any information about pending cases makes the watchdog agency unaccountable and leaves those who challenge the agency’s actions “at a gross disadvantage” and in an “information vacuum.”

Potter and attorney Mark Glaze, both with the Campaign and Media Legal Center, filed an amicus brief on Wednesday in support of the NVRI. They argued that the FEC’s unwillingness to provide more information on its investigation of the Ashcroft matter could damage the public’s right to challenge the agency.

“Without normal discovery of FEC investigative files and other case-related materials, private citizens, the media and organizations … would simply have no way of knowing the facts behind these cases, the strength and weaknesses of the agency’s investigation or the merits of the Commissions’ final action,” Potter and Glaze wrote in the brief.

Moreover, the lawyers contend that the FEC’s poor record of enforcement highlights the need for public accountability.

Pointing to the “highly politicized process of nominating commissioners” and the fact that the FEC “frequently fails to act on complaints for years and often dismisses meritorious complaints altogether,” Potter and Glaze implore the court to not exempt the FEC from discovery.

“The only effective means of holding the FEC accountable is for organization like amicus, along with the media and private citizens, to scrutinize the agency’s decisions and, at times to challenge them in court,” the brief continues. “With no access to information routinely available through discovery and no temporal limitation on the agency’s confidentiality provisions, this troubled agency’s work will be done in the dark.”