No more easy outs at the FEC

While no one who has had to deal with the enforcement process at the Federal Election Commission enjoys it, the FEC has put significant emphasis in recent years on dismissing unjustified complaints. The Commission uses a “no reason to believe” (no RTB) finding to express its conclusion that a complaint was not justified.

Getting that No RTB finding is now a lot harder thanks to a ruling by a Federal court here in Washington. In LaBotz v. FEC, D.D.C., Civil Action No. 11-1247 (RC), the court’s opinion concluded that the FEC improperly dismissed a complaint by a minor party candidate who had been excluded from a debate.  The judge ruled the dismissal improper because the Commission lacked “substantial evidence” to support its decision, arguing it was based on a weak affidavit. (The affiant did not claim personal knowledge of the facts involved and presented no contemporaneous evidence to support its claims.)   

The particular debate case has been sent back to the FEC for further consideration. 

But the ruling could affect nearly every complaint filed with the FEC. The commission’s (relatively) new general counsel, Anthony Herman, told political law professionals last week that the ruling called into question how much the FEC could rely on affidavits to dismiss cases without investigations, suggesting that the ruling was already leading to a revision in the way the commission handles cases.

At a minimum the case presents a higher bar for how affidavits need to be crafted, and what evidence must accompany them.

The take-away for political professionals is that it may not be enough to comply with the law—you need to document your compliance decisions and procedures. And, as much as you may resent having to deal with the FEC, there are times when the agency can be an ally, at least as compared to facing your political opponent in Federal court.

David M. Mason, a former chairman of the Federal Election Commission, is senior vice president, compliance services at Aristotle International.

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