C’mon, it’s just disclosure! (FEC edition)

Last week we filed a supplemental brief in Free Speech v. Federal Election Commission (FEC), a case that we brought on behalf of a small Wyoming grassroots group against the speech regulators in Washington, DC. We're hopeful that our case will be heard, because the issues we raised nearly two years ago when we filed suit have only become more pressing. Our case challenges several FEC regulations as unconstitutionally vague and overbroad, meaning the average person cannot understand how to comply with them and thus risks fines and penalties just for speaking out about national politics. Our brief focuses on recent events at the FEC which further indicate that even the agency itself (the supposed experts) cannot agree on what the regulations mean.

I blogged about a more recent lawsuit against the FEC in January, which challenges agency's 3-3 vote that prevented further investigation into the group CrossroadsGPS. Three commissioners found no reason to believe that Crossroads did anything but comply with the law in the 2010 election cycle, despite claims from "watchdog" groups, so the watchdog groups sued. At the time, I said that "[t]he FEC's office of legal counsel believed (as they tend to do) that further investigation was warranted."

Well, as it turns out, the FEC's lawyers may have been against further investigation before they were for it.

As Shane Goldmacher reported at the National Journal last month, with a follow-up a few weeks later, the CrossroadsGPS matter has a secret. The Office of General Counsel at the FEC, which conducts legal analyses of cases for the agency's six commissioners to consider when deciding on enforcement matters, submitted a First General Counsel's Report in the case in 2011. Instead of following up with a second report, the office withdrew the First Report and submitted a "second First General Counsel's Report" in late 2012. These reports are usually made public, but in this case the Counsel's office decided that the withdrawn First Report is "privileged" and redacted three commissioners' attempt to make it public:  

(This goes on for 75 pages.)

Irony upon ironies, in another case that's supposedly just about "disclosure" the FEC's lawyers do not want to disclose the full picture of how they apply the disclosure laws.

This redacted report could, of course, be an alternative legal theory about why CrossroadsGPS violated the law. I suspect, however, that it concluded that Crossroads was not a political committee and thus supported the vote of the three commissioners who tried to make the document public. These commissioners hint at this in their second statement of reasons: "the withdrawn First General Counsel's Report in this matter informed our decision in this matter." (Emphasis added.) I don't believe the commissioners would make such a stink if that were not the case, nor do I believe the other three commissioners (self-described champions of disclosure) would suddenly find a reason to support dark paperwork.

Whatever the redacted report says, it nevertheless undermines a position taken by the FEC in our Free Speech case that the agency's regulations are meant to be understood in the light of previous FEC enforcement matters. Speakers should not have to read thousands of pages of supporting documents in order to comprehend regulations (having read pretty much all of them, I can attest that they only reveal how arbitrary and discriminatory the FEC is about enforcement, anyway), but for the FEC to even contend that this is an acceptable requirement said documents need to be available in the first place.