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FEC Falls Short on Enforcement, Commissioner Says

New statistics show that the Federal Election Commission has become “less aggressive” at enforcing the nation’s campaign finance laws than it was a few years ago, the most senior member of the agency said Thursday.

Democratic Commissioner Ellen Weintraub’s criticism came minutes before FEC members passed a new policy on exculpatory evidence, which she said could further hamper FEC investigations.

“The notion that we are a fierce investigative agency that people are quaking in their boots about is probably not the case. If it ever was the case, it certainly is not today,” she said during the FEC’s meeting Thursday.

Weintraub, who has been a commissioner since 2002, said a recent staff briefing on agency enforcement revealed huge drops in the size of fines levied.

From fiscal 2006 to 2010, the average fine levied against campaigns, parties and political action committees for violating campaign finance law dropped from $180,000 to $42,000, Weintraub said. Similarly, the number of conciliation agreements, deals on penalties hammered out between the FEC and those under investigation, fell from 91 in fiscal 2007 to 29 in fiscal 2010, which Weintraub called a “pretty sharp drop.”

“Back in ’06 and ’07, they said we were ‘feckless’ and ‘toothless,’” she said. “I am not sure what the adjective would be today.”

Campaign finance reform advocates say four commissioners appointed in 2008 under the George W. Bush administration are responsible for the declines.  Five of the FEC’s six commissioners have reached the end of their terms but continue to serve, and it is unlikely that the Obama administration will appoint five new commissioners before the 2012 elections.

“Right now there is just a strong ideological divide on the commission,” Weintraub told Roll Call after the meeting. “There are three commissioners who are very libertarian in their views and pretty much think we should take a hands-off attitude on campaign finance law.”

Republican Commissioner Donald McGahn took issue with Weintraub’s conclusions, saying that the flow of cases can fluctuate and heavily influence the enforcement statistics. Recent court decisions swinging toward less regulation also influence the FEC’s work, McGahn said.

“Everyone can give speeches,” McGahn told Roll Call after the meeting. “But what she never mentioned was that law has changed considerably.

“Not only what the commission was doing was unconstitutional, it was beyond their statutory authority,” he added. “So, it would be shocking if the penalty average and the numbers of cases average didn’t go down. It has to, because there is not as much law.”

McGahn, who often leads debate on behalf of the three Republicans on the commission, said the rule passed Thursday was “long overdue.” The new policy, which passed 4-2, requires FEC officials to turn over any evidence that could clear campaigns, parties and political action committees of possible violations.

“The role of the FEC is to investigate and search for the truth,” McGahn said. “And you get to the truth a lot sooner if everyone knows what everyone else knows.”

Weintraub said during the meeting that the rule could undermine the FEC’s “ability to build cases and to go after the most culpable parties.”

In other agency proceedings, the FEC approved an advisory opinion by a 5-1 vote that would allow Rep. Chuck Fleischmann (R-Tenn.) to use campaign funds for the legal expenses of a contractor used in his 2010 election bid. The decision mirrors an opinion issued in 2009, which allowed Rep. Peter Visclosky (D-Ind.) to spend campaign funds to defend current and former staff members in an investigation into lobbying activities.

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