FEC Split Over Its Openness

Posted April 10, 2009 at 5:45pm

What’s in a press release?

The Federal Election Commission’s leaders are struggling with that question as they debate just how open and expansive the agency should be in publicizing its caseload, even as President Barack Obama calls for more transparency in the federal government.

The FEC’s press office declined to comment for this story. But in recent interviews with members of the bipartisan, six-person overseer of the nation’s election system, deep divisions became obvious regarding the FEC’s role — if any — in trumpeting high-dollar fines and other apparent triumphs through the commission’s press office.

Cynthia Bauerly, a Democratic-nominated commissioner and former lawyer for Senate Rules and Administration Chairman Charles Schumer (D-N.Y.), said last week that “my personal preference is that we put as much information as possible into the press releases.—

“We’re a disclosure agency,— she said. “I think it’s an important part of our job to make sure that committees are reporting everything they need to be reporting, and therefore, it behooves us in turn to put information about our closed matter into the public record in the most usable form.

“Obviously, the statute prohibits us from discussing cases until they’re closed,— she added. “But once they’re closed, all of the relevant information goes on the public record, and in my view, we could make it a lot easier for both reporters and the general public to find and use by putting more into our press releases.—

But not everyone at the agency shares Bauerly’s approach. Don McGahn, a Republican-nominated commissioner and veteran campaign finance lawyer, suggested that the agency should err on the side of caution when disseminating facts even on settled cases, releasing only the bare minimum — lest the commission perhaps prejudice the parties involved or appear to be taking sides in often-sensitive political matters.

“The agency is an independent decision-maker that is quasi-judicial,— McGahn said. “You don’t see judges holding press conferences after they sentence, and neither should the FEC.—

McGahn’s stripped-down approach to press relations appears to be winning. The volume of public statements made by the current commission is vastly lower than in years past, and the language used in the recent releases comes across as bland and utilitarian.

In fact, since the beginning of the year, the FEC has issued fewer press releases than it did during the first half of 2008, when a prolonged spat involving the White House and Senate Democrats over agency nominees shuttered the agency for roughly six months.

Trevor Potter, a former FEC commissioner who now practices law at Caplin & Drysdale, has observed “very odd gaps— in the information recently distributed by the FEC’s press office. Potter, president of the Campaign Legal Center, said it’s uncertain whether that approach originates in the agency’s press office or at the request of McGahn or other commissioners.

“The commissioners need to explain what they’re doing,— Potter said.

Potter, Sen. John McCain’s (R-Ariz.) campaign lawyer during last year’s presidential election, also said that a similar divide existed when he was at the agency more than a decade ago, when some of his Clinton-era colleagues, too, preferred the “low key— approach now espoused by McGahn.

“When I got there, the commission’s policy was to put everything out and do so in an absolute, nondescriptive way,— Potter said. “My view was that we knew internally that some cases were more important than others. … In those cases we ought to hold a press conference and attract attention to it.—

It’s difficult to tell exactly how far the commissioners may extend their authority over the FEC’s press operations. McGahn and Bauerly declined to discuss the process, although numerous outside observers confirmed that commissioners, in fact, frequently are heavily involved in public relations strategy.

For example, in 2005 and 2006, the agency published more than 200 public statements through its press office at the behest of then-Commissioner Bob Lenhard, a Democrat who “spearheaded an effort— to promote the agency’s accomplishments, according to a campaign finance lawyer.

So far this year, the agency has released fewer than 30.

“Each group of commissioners has their own philosophy on press relations and how much information to get out to press and in what form,— the campaign finance lawyer said. “There’s no doubt that in 2005-06 that group of commissioners decided to be much more proactive on enforcement cases and other things the agency was doing.—

Lenhard, now a Democratic campaign finance lawyer at Covington & Burling, reviewed the agency for Obama during the transition and declined to comment for this story.