[UPDATE: The FEC enforcement issue is being held over to a future meeting).
One Democratic commissioner left in February, leaving three Republicans and two Democrats on the Commission. McGahn is hoping to take advantage of the partisan imbalance by proposing a “gag” order in new enforcement guidelines, to be approved by a 3-2 majority, that would: (i) prevent FEC staff from viewing public resources in conducting their investigations, such as candidate and government Web pages, news reports, business databases and social media sites; and (ii) prohibit FEC staff from sharing information with the Department of Justice (DOJ), which handles criminal investigations of campaign finance scandals.
If the ability of FEC staff even to conduct an investigation can be hamstrung from the onset, then the Commission need not face many more embarrassing obstructionist votes. Just as importantly for those seeking to block enforcement of the campaign finance laws, the DOJ will also be hobbled in its criminal investigations.
Prior to announcement of McGahn’s proposal, FEC General Counsel Anthony Herman unexpectedly resigned from the agency last month. After the announcement, Herman felt compelled to warn the FEC and the public of the pending danger to campaign finance enforcement and submitted public testimony to the Commission.
If the Republican commissioners continue to vote as a bloc on this proposal, they will effectively neuter the enforcement ability of FEC staff and hinder Justice investigations of egregious violations.
Though it is a big ask of the remaining two Democratic commissioners, they could take a page from McGahn’s playbook and not show up at the next FEC meeting, thereby denying quorum and any agency decision on the gag order.