FEC Recusals Irk Watchdogs

Posted February 27, 2004 at 6:00pm

The two newest members of the Federal Election Commission have recused themselves from votes on nearly two-dozen enforcement matters combined since joining the watchdog agency just more than a year ago — a trend FEC critics say demonstrates troubling aspects of the agency’s appointment process.

Democratic appointee Ellen Weintraub — a former lawyer with the political law practice of D.C.-based Perkins Coie — has recused herself from voting on at least 14 enforcement matters since she joined the commission in December 2002, an analysis of 117 publicly released Matters Under Review, or MURs, as they are more commonly called, revealed.

Republican Michael Toner, former chief counsel to the Republican National Committee and the top lawyer with the Bush-Cheney 2000 campaign, has opted out of at least eight of some 200 enforcement cases since he first joined the FEC as an appointee of President Bush in March 2002.

Toner declined to comment on the recusals, but Weintraub said she finds it frustrating to have to recuse herself on those occasions.

“I came up here to work,” she says, noting that her recusals never affected the final outcome of any of those enforcement matters.

“It never really made a difference,” she said. “There was never a case where we couldn’t get a vote because I couldn’t participate.”

But watchdog groups say the high incidences of recusals show there are problems with the system.

“The recusals are in one sense good and in another sense bad,” explained FEC Watch Executive Director Paul Sanford. “I view them as potentially an indictment on the way the commissioners are selected — not indictments of any commissioner in exercising their ethical judgment.”

Sanford, who previously served as a staff attorney at the FEC, said the commissioners should be “commended” and “complimented” for recusing themselves from matters that could be viewed as potential conflicts of interest — but he noted that the volume of recusals is “part of the reason we’ve advocated a greater willingness on the part of Congress or the president to look to individuals outside the traditional campaign finance community.”

“The selection of people who are so closely connected to the existing party structure or a particular candidate is problematic for this reason,” Sanford said. “It puts them in a position where they will have to recuse themselves in many matters and thereby puts the commission at a disadvantage concerning the availability of its members to deliberate on different legal issues.”

Ties That Bind

The rate of recusal by Weintraub and Toner far exceeded that of their four fellow commissioners, who abstained on only a handful of occasions combined during the period examined by Roll Call.

The cases from which Toner has recused himself involved groups such as Bush for President, Gore 2000, the Commission on Presidential Debates and several other groups with links to the 2000 presidential election or the Republican Party.

Among the cases Weintraub has had to take a pass on include matters involving the New Democrat Network in the 2000 election cycle, Sen. Jim Talent’s (R-Mo.) 2002 campaign committee and Rep. Nick Lampson’s (D-Texas) 2002 campaign.

And that does not include other matters outside the FEC’s enforcement process that she had to sit out, such as an advisory opinion request last year from Sen. Harry Reid’s (D-Nev.) son, Clark County Commissioner Rory Reid, who wanted to know if he would be considered an “agent” of his father when raising soft money for the Nevada State Democrats.

This election cycle alone, Perkins Coie has advised at least 35 separate political committees and 18 Democratic candidates for federal office, including several Democratic presidential candidates and numerous Democratic leaders in Congress, campaign disbursement records showed.

Weintraub said she had to recuse herself more often because Perkins Coie has such a large slate of Democratic political clients. Although she was required during her first year at the FEC to refrain from working on any cases involving any clients of Perkins Coie, after one year government ethics regulations require that she recuse herself only from those cases that she worked on directly while at the law firm, she said.

Nonetheless, Weintraub said there are some clients of the firm that she will continue to recuse herself from because of the depth of knowledge she has related to their campaigns.

Although Weintraub concedes that she “had more issues that I had to recuse myself from than most people would” because of Perkins Coie, she said in most circumstances she had “no knowledge about any of those cases.”

Sanford said the problems with so many recusals go beyond the final vote.

“Even though the outcome might not have been changed by a single vote, it doesn’t necessarily mean the outcome wasn’t affected by the recusal,” he explained. “It’s not just their vote. It’s their participation in the deliberations. It’s an important component of any participation in possible violations. When they’re left out of that mix, it can change outcomes that aren’t necessarily reflected in numerical vote counts.”

‘The Real World’

Democracy 21 President Fred Wertheimer, who has called for a complete overhaul of the FEC, said recusals by FEC commissioners are “yet another indication of the fact that the individuals who wind up on the commission are generally chosen to represent the views and interests of the political parties and federal officeholders who are concerned about the potential impact of this law on their activities.”

Nonetheless, Wertheimer said the recusals shouldn’t be viewed as an indictment of the two commissioners examined, but rather demonstrate a “general problem that has gone on throughout the history of the commission.”

“It is not limited, nor does it focus on these commissioners, but rather on what the goals are of the political parties and federal officeholders in choosing individuals — and that’s why you need to get the appointment process changed and the culture at the enforcement agency changed,” Wertheimer said.

Weintraub rejects the notion, however, that having worked closely with the regulated community somehow taints the process at the FEC.

“Having real-world experiences with how campaigns operate brings something to the commission,” she said. “We know when respondents are blowing smoke at us. … We know how it works, and frankly there’s a limited universe of people who know their way around this niche area of the law, and most of them learned it in the real world.”

Weintraub said that doesn’t mean all commissioners must have had real-world experience in campaigns, but to “have had some people who had this experience is invaluable.”

The commission currently comprises individuals from a mix of backgrounds — and Weintraub believes that is healthy for the agency, bringing a variety of perspectives to the table.

Commissioner Brad Smith, a Republican, was a law professor before being appointed to the FEC; Dave Mason, also a Republican, worked for a think tank and on Capitol Hill before his appointment.

On the Democratic side, outgoing Commissioner Scott Thomas worked his way up through the ranks of the FEC as a staff lawyer before first being appointed a commissioner 18 years ago. Danny Lee McDonald, also a Democrat, worked in state government in his native Oklahoma before coming to Washington.

The fact that some commissioners, such as Weintraub and Toner, have considerable experience in the real world of campaigning is also important, Weintraub said, because “it just happens that the staff of the agency doesn’t contain a lot of people who have any practical experience with campaigns.”

But Wertheimer said he believes it is possible and preferable to find people who are “imminently qualified to do this kind of work” but not as closely tied to the community.

“Over the history of the agency, it has been viewed by the regulated community — and in particular by federal officeholders and political parties — as an agency that should be responding to the interests of the regulated community, and that is not the purpose or role of the Federal Election Commission,” Wertheimer said.

Wertheimer has endorsed legislation introduced by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) that he said would “lift the enforcement body out of the hands of the regulated individuals who now control the appointment process and to try to get it to a more independent status.”

A key provision of that bill would establish a system of impartial administrative law judges to hear enforcement proceedings, which Wertheimer says “would inject individuals in important decision-making roles that have not been put there by the political parties and federal officeholders who are being regulated by this law.”

But Weintraub rejects the notion that just because she represented political parties or candidates during her stint as an attorney at Perkins Coie she cannot be impartial.

“There is a common misperception out there … that once you’ve represented a client you’re theirs for life,” said Weintraub, who once served as counsel to the House Committee on Standards of Official Conduct, advising lawmakers on ethics issues.

Describing herself as a stickler for ethics to her dying day, Weintraub said she believes strongly in the recusal rules that arise out of government-wide restrictions on employees.

“It’s one of these things that goes to the appearance of impartiality,” she explained. “Not so much that I think I couldn’t have impartially ruled. … It’s just people would have thought I couldn’t have.