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A Look inside the Office of General Counsel at the Federal Election Commission

The following is a guest post by Geneviève Claveau and Julia Heron, summer interns at the Global Legal Research Directorate, Law Library of Congress.  Geneviève and Julia have previously written a post on Quebec’s Dual Legal System.

On July 15, we had the opportunity to visit the Federal Election Commission (FEC), located at 999 E Street NW, Washington, D.C. With the 2016 presidential election fast approaching, we thought it would be interesting to briefly explain the functions of the FEC, and more specifically, those of the Office of General Counsel.

In 1974, Congress passed Pub.L. 93-443, 88 Stat. 1263, the Federal Election Campaign Act Amendments which amended the Pub.L. 92-225, 86 Stat. 3, the Federal Election Campaign Act of 1971 (FECA). Among other things, this law created a new independent agency, the FEC, to enforce and interpret federal campaign finance laws. The FEC was inaugurated in 1975 and administered the first publicly funded presidential election the next year. The Commission supervises the financing of campaigns for the U.S. House of Representatives, the U.S. Senate, the presidency and the vice presidency.

Julia and Geneviève in the FEC hearing room.

Julia and Geneviève in the FEC hearing room.

The Commission is made up of six members (the commissioners) appointed by the president under the advice and consent of the US Senate for a six year term. The FECA mandates that no more that three commissioners from the same political party may be appointed to the Commission at a time. Consequently, there is usually equal representation of Democratic and Republican interests. However, there is currently a commissioner who sits as an independent. All decisions of the Commission require a majority vote of the commissioners.

It was explained to us that the Commission has four main departments: Report Analysis, Information, Audit, and the Office of the General Counsel. As mentioned above, we are focusing this post on the Office of the General Counsel, which consists of four divisions: Policy, Enforcement, Litigation, and Administrative Law.

The Policy Division is charged with developing regulations and producing advisory opinions in response to inquiries regarding the the legality of certain campaign activities. FECA allows the Commission to set out, in strenuous detail, what can and cannot be done and how candidates can participate in the electoral process through regulations codified in Title 11 of the Code of Federal Regulations. For instance, when Congress passed Pub. L. 107-155, 116 Stat. 81, the Bipartisan Campaign Reform Act of 2002 (BCRA) the FEC lawyers had to put in many extra hours over an extended period of time to develop the regulations mandated by this law.

The Commission has exclusive civil jurisdiction over the enforcement of federal campaign finance law. Therefore, the Enforcement Division conducts investigations and recommends actions to the Commission on certain issues brought to its attention. Issues may come to the Division’s  attention internally, notably from the Report Analysis or Audit Division. However, most of the time, they arise from citizen complaints. One of the hot topics currently before the enforcement team is the legality of the use of Twitter to divulge polling numbers to super PACs (political action committees) and non-profit organizations.

Following the examination of an enforcement matter, if the Commission decides that a violation of the law has occurred, it first attempts to reach an agreement with the alleged violator/s, which can include remedial steps and civil penalties.  If that fails, the Commission then pursues civil action before a U.S. District Court.

The Litigation Division represents the Commission before federal courts. As noted above, it can institute suits in cases of enforcement when given permission by the commissioners. This division may also be called upon to defend the administrative decisions taken by the Commission in the event of a filing for review. For example, a PAC could seek a judicial review of the Commission’s decision not to act on a specific enforcement matter. The Division has also had to defend the constitutionality of statutes, notably in regards to First Amendment issues. However, when a matter winds up before the U.S. Supreme Court, the Division has to work alongside the U.S. Department of Justice.

Finally, the Administrative Law Division mainly conducts research on all non-FECA related law. The area of expertise of the attorneys in the Division includes government contracting, the Freedom of Information Act (FOIA), as well as employment and labor relations. They are also in charge of reviewing all materials prepared for electronic publication.

If you are interested in the workings of the Commission, you can attend a public meeting where the commissioners adopt new regulations, render advisory opinions, approve audit reports concerning presidential campaign committees, etc. These public meetings are normally held every week.

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