FEC Republicans Explain Dropping Gingrich, Murray Cases

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By Kenneth P. Doyle

June 6 — The three Republicans on the Federal Election Commission have explained their votes to dismiss recent FEC enforcement cases involving former House Speaker Newt Gingrich (R-Ga.) and coal company owner Robert Murray of Murray Energy Corp.

The FEC had deadlocked in 3-3 votes along party lines in both cases, resulting in their dismissal, according to documents released previously

(See previous story, 05/25/16) (See previous story, 05/23/16).

Two lengthy statements released late June 3 by the FEC Republicans contained the first public statements regarding why they voted against staff recommendations to pursue enforcement action.

In both cases, the three — FEC Chairman Matthew Petersen and Commissioners Lee Goodman and Caroline Hunter — said the responses provided by those accused of violating campaign finance laws were adequate and the matters should be dropped without a full investigation or further action.

Gingrich Case Involved Book Sales

Allegations against Gingrich—said to be on the short list of possible vice presidential running mates for presumptive Republican presidential nominee Donald Trump—dated back to his 2012 run for the Republican presidential nomination.

An FEC staff report in the enforcement case—designated Matter Under Review (MUR) 6518—found that Gingrich and his wife Callista violated campaign finance rules by commingling finances of a presidential campaign committee and a private corporation they ran to promote sales of a book by Gingrich.

The FEC Republicans said in a 16-page statement that they voted against enforcement action because efforts to keep the campaign separate from the book sales effort were adequate.

In the 2012 campaign, Gingrich campaign events were held alongside book-signing events. Though the events were said to be separate, there was some overlap, including mentions of Gingrich's book on the campaign website and collection of e-mail addresses by the campaign at the book signings.

The FEC Republicans said the overlap was not great enough to justify enforcement action. Their statement noted that Republican FEC commissioners had previously supported an advisory opinion concluding that a candidate's campaign committee could collect the e-mail addresses of people attending the candidate's book signings and promotional events because “the mere collection of e-mail addresses” does not convert an event into a campaign fundraiser.

Though the FEC deadlocked on the allegations that Gingrich broke laws regarding separation of campaign and private funds, the commissioners did vote 5-1 to approve a settlement to resolve reporting violations by the campaign. The settlement called for the presidential campaign committee, Newt 2012, to resolve its debts and terminate.

Gingrich ended his bid for the Republican presidential nomination in 2012 with more than $4.6 million in debts, which still have not been paid off four years later. The campaign's deadline to come up with a debt settlement plan, originally set for May 23, has now been delayed until Aug. 1—after this summer's Republican National Convention.

Murray Case Alleged Coercion

In the Murray case (MUR 6661), the FEC Republicans explained in a 21-page statement why they voted against a staff recommendation to investigate Murray and his company for alleged coercion of Murray Energy employees to make campaign contributions to candidates favored by the top executive.

While saying that they condemned coerced contributions, the FEC Republicans suggested that being too quick to investigate cases where employees feel pressed to give to a campaign could violate an employer's First Amendment rights to advocate for favored candidates. Solicitation of campaign contributions from employees is coercive—and thus illegal—only in cases where there are explicit threats to an employee for not giving, such as physical harm or loss of a job or pay, the FEC Republicans maintained.

“We cannot find that an employer coerced contributions solely upon an employee's subjective perception” of pressure, the FEC Republicans said.

“Soliciting another person to give money to a candidate or political committee may naturally be uncomfortable to the solicited individual,” they added. “But a solicitation is at its core a protected First Amendment activity.”

In addition, the Republicans' statement noted that evidence provided in the Murray case involved campaign-related activity beginning almost a decade ago and much of it was outside the five-year statute of limitations.

The FEC announced last month that it had deadlocked on a vote whether to investigate the charges involving Murray's alleged coercion of contributions. The action followed a similar deadlock last year over charges that Murray Energy employees and their families were required by the company to attend a 2012 rally for Republican presidential candidate Mitt Romney.

Republicans: Limiting `Pressure' Chills Speech

The three FEC commissioners holding Democratic seats—FEC Vice Chairman Steven Walther and Commissioners Ann Ravel and Ellen Weintraub—issued a statement last month sharply criticizing their three Republican colleagues for voting to dismiss the latest case.

“This case of political coercion in the workplace reverberates beyond the realm of U.S. elections,” their statement said. “Every citizen should feel free to give—or not to give—to the candidates and political causes of their choice, inspired by their own convictions, and free from outside pressure or coercion.”

The FEC Republicans responded directly in their own statement on the Murray case, saying that their colleagues' support for enforcement action misstated the law by insisting that pressing employees to make a campaign contribution is illegal.

“Members of the public and indeed veteran legal counsel would be hard pressed to ascertain what precisely these Commissioners would punish as forbidden ‘outside pressure,' ” the FEC Republicans said. “Because we are addressing the fundamental First Amendment rights of persons to engage in political speech, including asking one another to support or oppose one candidate or another, the proposal to punish people based upon subjective feelings, rather than objective, discernible actions, fails to give clear notice of the law and appears calculated to chill virtually all solicitations in the workplace.”

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

For More Information

Documents in closed FEC enforcement cases are available online at http://eqs.fec.gov/eqs/searcheqs.