FEC Chairman Hopes ‘Smaller Things' Grow Consensus

By Kenneth P. Doyle

Feb. 17 — Matthew Petersen, the Federal Election Commission's Republican chairman for 2016, has a quiet demeanor that contrasts sharply with his outspoken predecessor, Ann Ravel, a Democrat who held the FEC's rotating chairmanship last year.

Petersen's agenda for the agency also is a contrast with—if not a reaction to—Ravel's ambitions. In a Feb. 17 interview with Bloomberg BNA, the new chairman called for the FEC to pursue modest initiatives, including modernizing regulations to accommodate the new technologies used in today's campaigns and updating forms filed by political action committees to recognize the reality of the rise of super PACs.

“I try not to be unrealistic about what's possible,” he said. “I know where the fault lines are between different sides and different commissioners. But, notwithstanding that, there still are things I think we can get done.”

Petersen said his hope was that “by focusing on some of these smaller things … on areas where there might be broad agreement,” the FEC may be able to get past some of its past hurdles and be more productive.

But Petersen frankly acknowledged the larger policy differences between Republican and Democratic commissioners, which have led to near-gridlock in recent years.

Petersen: Leave Policy to Congress

Definitely not on his agenda are the sweeping policy initiatives advocated by Ravel, including new disclosure rules for campaign spending groups that collect so-called dark money and new restrictions on super PACs' ability to coordinate their activities with candidates. He says such changes—if they're to be made—must be made by Congress. And Congress has shown little ability to enact legislation on campaign finance issues in recent years.

Meanwhile, Ravel and fellow FEC Democrat Ellen Weintraub have said any new FEC rules on super PACs—even new procedures and forms—address broader issues of coordination, disclosure and possible foreign contributions. Therefore, this should be dealt with broadly, they have argued, rather than by simply codifying the status quo following recent deregulatory court decisions, including the pivotal 2010 ruling in Citizens United v. FEC.

Ravel also used her FEC chairmanship last year to hold commission hearings and make public statements about the need to tell voters who is paying for campaign messages and emphasizing the FEC's responsibility to require disclosure of campaign money.

A third commissioner who holds a Democratic seat on the FEC is Steven Walther, a political independent who is serving as FEC vice chairman during 2016. Walther co-authored a joint statement with Petersen, published this month in the agency's FEC Record, which focused on a spirit of cooperation.

Seeking ‘Common Ground' With Walther

“While we do not deny the existence of vigorous debates among Commissioners,” Petersen and Walther wrote, “they need not limit the Commission’s ability to identify and move forward on issues and initiatives that improve compliance with the law, provide helpful information to the public, and enhance Commission operations. To that end, we are committed to finding common ground and to compromise where necessary to make tangible progress on constructive proposals.”

The statement provided few specifics, however, beyond pledges to continue improvements of the FEC website in a project launched last year. Petersen and Walther also said they would continue to expand FEC outreach programs to promote compliance with reporting and other legal requirements.

A more specific agenda item that Petersen elaborated on in the Bloomberg BNA interview was a staff-drafted proposal to modernize FEC rules. While some of the proposed changes are not substantive, others would address issues that the FEC has faced in numerous recent requests for advisory opinions, including rules for fund-raising over the Internet and by text messaging. A key issue in this area, he noted, is how FEC requirements to provide disclaimers—written in the era of newspaper, television and radio ads—apply to modern campaign messaging on computers and smart phones.

Current FEC rules require disclaimers stating who paid for campaign messages and whether a message was authorized by a candidate. However, some have argued such requirements are too detailed and lengthy for modern campaign ads on electronic media.

Push for Modernization Rulemaking

Petersen indicated he intends to push for a vote on a formal rulemaking notice and request for public comments on the modernization proposal. That could lead to a public hearing, in which experts on the latest campaign techniques could share their knowledge and ideas with the FEC, he said.

Other possible areas for progress, Petersen suggested, include proposals for new regulations regarding the FEC's nearly decade-old program providing for administrative fines regarding certain reporting violations. Congress explicitly gave the FEC authority to regulate in this area, but the commission has been slow to act.

Petersen said the FEC may also follow up on another recent congressional action—a provision in the 2014 omnibus appropriations measure, which created new political party accounts and allowed increased contributions to the national political parties. The statutory provision briefly describes the new accounts as devoted to funding party conventions, legal and recount costs, and party headquarters costs. The FEC staff has presented a draft proposal to add more detail, including possibly stricter limits on what the increased money raised by the parties can be used for.

Petersen indicated he was open to at least beginning a rulemaking process in this area but cautioned that the parties may not be able to focus on it during the ongoing presidential primary season and the upcoming presidential nominating conventions.

Continued Work on Enforcement Backlog

While Petersen acknowledged there are likely to be continuing disagreements among the FEC commissioners on the agency's agenda, he said there also are key areas for possible cooperation. He suggested the FEC would continue working through a lingering backlog of enforcement cases, some of them years old—a priority that Ravel and the other FEC Democrats emphasized in the final months of her leadership at the agency.

Even in cases where the commissioners may deadlock regarding whether to pursue enforcement action, Petersen said he believes those who file complaints with the FEC, those accused of violating the law and the public have a right to know the outcome.

General Counsel Vacancy

Another ongoing project, he said, will be to look for a permanent FEC general counsel. This search has gone on for nearly three years and has been hindered—according to Petersen—not just by disagreements among the commissioners but also by antiquated statutory provisions limiting the FEC general counsel's salary.

The salary provisions restrict the agency's ability to cast a wide net in conducting a personnel search, Petersen said. He said the FEC has sought to get Congress's attention to change these provisions. In the meantime, he suggested, the FEC general counsel's office will continue to function under the leadership of Daniel Petalas, who was appointed as acting general counsel last year.

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