At last Thursday’s FEC meeting, a Commissioner proposed that the FEC plow through its docket of cases within three months as a service to the complainants. This proposal cannot be considered blind to the fact that the FEC’s complainant class has filed three complaints against a Republican or conservative respondent for every one involving a Democratic or liberal respondent. Those who work inside the FEC have seen how enforcement dockets and meeting agendas can be manipulated to focus on particular respondents or to sequence matters in ways that influence their substantive consideration. For example, matters can be sequenced to advance or avoid nuanced distinctions between cases involving similar facts and circumstances leading to disparate treatment of similarly situated respondents. Furthermore, some cases are more complicated than others. For these reasons, I argued that any policy on enforcement procedure must be fundamentally fair. The proposal at the meeting fell short on this count and suffered from other technical deficiencies I explained.
As I stated at last Thursday’s meeting, I believe the Commission should expedite resolution of more cases for the benefit of the citizens who find themselves entangled with the FEC’s enforcement process. Accordingly, I recommended that the Commission expedite consideration of all matters while affording Commissioners reasonable discretion to consider matters subject to the following timing factors:
(1) deferring action in a case that may be the subject of parallel enforcement by another government agency;
(2) deferring action in a case that might affect ongoing litigation;
(3) timing action to avoid direct election intervention (similar to the policy of the U.S. Department of Justice);
(4) considering several matters involving one respondent at one time rather than piecemeal; and
(5) considering several matters involving different respondents but raising the same legal issues at one time rather than separately (risking disparate treatment).
Other Commissioners may have other timing considerations, and I would be open to discussion about those. Whatever policy guides the Commission’s timing, however, it must be fair and free from even the perception that it will discriminate against those affiliated with a specific political party or ideology.