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House Admin Requests BCRA Symposium

Members of the House Administration Committee called Thursday for a symposium to educate their colleagues on new campaign finance laws that have been in place for more than 11 months.

“The more we are educated the better off we will be,” Chairman Bob Ney (R-Ohio) said during an oversight hearing of the Federal Election Commission’s enforcement procedures.

The panel’s ranking member, Rep. John Larson (D-Conn.), initiated discussion of the education event, but also unwittingly demonstrated the need for such a seminar when he incorrectly suggested that “this law takes effect on Nov. 1, if I’m correct.”

The Bipartisan Campaign Reform Act went into effect in November 2002, immediately following Election Day.

Ney said such a symposium on changes made under BCRA would likely not take place until after the Supreme Court issues a decision in McConnell v. FEC, the ongoing challenge over the law. A ruling could come before the end of the year.

FEC Chairwoman Ellen Weintraub volunteered that the agency, which already provides a half-dozen seminars on campaign finance laws each year, would be willing to conduct a symposium at any time.

“A lot of the lawyers and campaign officials for a lot of Members of Congress have already attended one of those training sessions,” Weintraub said. “But if they want to invite us to come down and do one on the Hill, I see no downside to that. We’ll explain the way the law is now … and if the Supreme Court changes it, we’ll revise our interpretation.”

In addition to the FEC educating Members, Ney suggested the national parties should examine providing instructional courses for non-incumbent candidates.

Larson also recommended the FEC post a list of the 10 most frequently asked questions about the finance laws, as well as another list detailing common mistakes made in campaign filings.

The hearing included Weintraub; FEC Vice Chairman Brad Smith; James Bopp, general counsel, James Madison Center for Free Speech; Don McGahn, general counsel, National Republican Congressional Committee; Karl Sandstrom, former FEC commissioner; and Marc Elias of the law firm Perkins Coie.

Many of the witnesses touched on issues raised during a June hearing conducted by the FEC that also examined enforcement procedures.

“In response to that hearing, the commission has already made several modifications to its enforcement procedures,” Weintraub said. Among the changes, she noted, the FEC now provides witnesses access to transcripts of their depositions, is revising the agency’s confidentiality advisement and is developing new policies on “sua sponte” submissions and the naming of respondents. (Sua sponte is used when the court addresses an issue without the litigants having presented the issue for consideration.)

“It is my personal belief that increased efficiency and increased transparency will go a long way toward alleviating any remaining concerns of the regulated community about the agency’s enforcement practices,” Weintraub said.

Committee members also questioned witnesses on their views about adding a seventh commissioner to the FEC, which is comprised of three Republican and three Democratic appointees.

Both Smith and Weintraub discouraged such a change, noting that fewer than 4 percent of the FEC’s votes end in a 3-3 tie.

“We create a larger problem by having an odd number of commissioners,” Weintraub asserted, explaining that a seventh commissioner would give more power to one party and prevent any need for bipartisan agreement.

Witnesses also focused on the need to increase the efficiency of the agency’s investigations. Elias suggested implementing a screening process to fast-track “straightforward” or easily resolved complaints.

“If the cases just moved quicker … I think we’d all be happier,” Elias said.

Following the hearing, Ney said the panel could look at introducing legislation to address a number of the issues raised by witnesses.

“We might want to do a bill,” he said.

Members of some pro-campaign finance reform groups, such as the Campaign Legal Center, questioned why they were not included in the hearing.

“That was a completely one-sided discussion of the FEC and the issues relating to it,” said Trevor Potter, a former FEC Chairman who heads the Campaign Legal Center.

Potter criticized what he described as the committee’s decision to exclude watchdog agencies by inviting only Republican or Democratic attorneys.

“The only interest that was left out was the public interest,” he said. “When both parties agree on something it’s probably bad news for reform in terms of the Federal Election Commission.”

But Ney defended the committee’s witness selections, and noted that some of the slighted groups would likely be invited for hearings on any possible legislation.

“We won’t pass a bill before we hear from them,” he said.

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