Republican FEC Commissioners Go Public With Complaints About Mystery Redaction

The GOP commissioners still can’t unlock a document that could guide political lawyers counseling campaign clients on how to avoid sanctions.

National Journal
Shane Goldmacher
March 26, 2014, 10:18 a.m.

The Re­pub­lic­an com­mis­sion­ers of the Fed­er­al Elec­tion Com­mis­sion have broken their si­lence about the mys­ter­i­ous 76-page doc­u­ment that was re­dac­ted against their wishes in the dead­locked de­cision over wheth­er Cross­roads GPS was a le­git­im­ate non­profit.

In a state­ment pos­ted to the FEC’s web­site late Tues­day, the com­mis­sion’s three Re­pub­lic­ans pulled back the cur­tain a bit on the miss­ing doc­u­ment. “We do not be­lieve that these re­dac­tions are ne­ces­sary,” they wrote, say­ing they had sought to re­lease the doc­u­ments in a closed-door com­mis­sion meet­ing but “the vote failed.”

Na­tion­al Journ­al first re­por­ted the ex­ist­ence of the massive re­dac­tion and the be­hind-the-scenes con­tro­versy earli­er this month.

The sealed doc­u­ment is the ini­tial re­port from the FEC’s law­yers to the com­mis­sion, from 2011, re­com­mend­ing how to pro­ceed in the Cross­roads case, one of the most con­sequen­tial be­fore the FEC in years. That ini­tial re­port was with­drawn and re­placed with a new one from the coun­sel’s of­fice a year later. When the Re­pub­lic­ans sought to pub­lish the first re­port, along with their opin­ion in the case, it was blocked first by the Of­fice of Gen­er­al Coun­sel and later by the FEC’s Demo­crat­ic-aligned com­mis­sion­ers.

In their state­ment Tues­day even­ing, the com­mis­sion’s Re­pub­lic­ans — Lee Good­man, Car­oline Hunter, and Mat­thew Peterson — wrote that the doc­u­ment “was clearly pre­pared with an ex­pect­a­tion that it would be re­viewed by com­mis­sion­ers and the gen­er­al pub­lic.”

The con­tents of the re­dac­ted pages are im­port­ant as they could serve as a roadmap for polit­ic­al law­yers for how the FEC made its de­cision and help them provide guid­ance to polit­ic­al groups for how to avoid fu­ture sanc­tions.

“It should have been pub­licly re­leased so that it could be avail­able to a re­view­ing court and lit­ig­ants as part of the ad­min­is­trat­ive re­cord in this mat­ter,” the Re­pub­lic­an com­mis­sion­ers wrote. In their state­ment, the Re­pub­lic­ans said that the re­dac­ted pages in­clude both the law­yers’ first re­port, “along with an ac­com­pa­ny­ing Fac­tu­al and Leg­al Ana­lys­is.”

They also dis­cussed, in great­er de­tail, the dif­fer­ences between the ini­tial sealed re­port and fi­nal pub­lished one. The GOP com­mis­sion­ers said the fi­nal re­port used “a cal­en­dar year and only a cal­en­dar year” to de­term­ine wheth­er a group was a le­git­im­ate non­profit but that the Of­fice of Gen­er­al Coun­sel’s leg­al test “was evolving be­hind closed doors,” sug­gest­ing the ini­tial re­port looked at a dif­fer­ent time frame.

The Re­pub­lic­ans wrote that Cross­roads, a Karl Rove-af­fil­i­ated group, and oth­er groups “did not have clear pri­or no­tice that their re­spect­ive ma­jor pur­poses would be ana­lyzed by OGC un­der a single cal­en­dar-year rule.”

It is pos­sible the re­dac­ted doc­u­ments could still be made pub­lic, after sev­er­al groups have sued the FEC for its dead­lock in the case and could re­quest them as part of the law­suit.

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