In the dark: Feds will no longer confirm, deny existence of elections complaints

The press shop for the Federal Election Commission can no longer confirm or deny the existence of complaints of alleged violations it has received, departing from years of practice and raising concerns about transparency. 

The FEC – an independent regulatory agency that administers and enforces federal campaign finance law – voted 4-2 last month to enact the change. The vote was requested by FEC Commissioner Allen Dickerson, a Republican, citing legal advice from the agency’s Office of General Counsel in 2006 that was never followed, and was not completely along party lines.

The two commissioners who voted against the change as well as several advocacy groups lambasted the decision, saying it hinders the agency’s ability to be transparent. 

In Florida, complaints of election law violations filed with the Florida Elections Commission already are confidential until "a determination of probable cause or no probable cause by the commission," state law says. Probable cause means it's more likely than not that a violation of law occurred. 

"However, a complainant is not bound by the confidentiality provisions of this section," the law says, meaning the person who files a complaint may discuss it publicly, including with the press. 

Moreover, complaints filed with the Florida Commission on Ethics – which looks into breaches of Florida's ethics laws – also are confidential "until the alleged violator makes a written request to the Commission that such records be made public or until the complaint reaches a stage in the Commission’s proceedings where it becomes public," its rules state. That also means when probable cause is determined. 

"As long as a complaint remains in a confidential stage, neither Commission members nor staff are free to comment on it to members of the public or the press," the rules say. 

'Practice was contrary to commission regulations'

FEC Chair Dara Lindenbaum, a Democrat, said in a statement explaining her vote for the measure that she appreciates the role the press plays as well as takes seriously her role in following the 1971 Federal Election Campaign Act and its implementing regulations.

“Upon learning that the commission’s press office was disclosing the existence of complaints in response to inquiries and that this practice was contrary to commission regulations and the commission’s office of general counsel's most recent assessment, I agreed with my fellow commissioners to take action to align FEC practices with its legal authority,” she wrote. 

But Lindenbaum said that complainants may choose to share their concerns publicly and she welcomes “fresh petitions for rulemaking on this issue with ideas for how the commission can amend its regulations to allow for greater transparency and accountability.”

Dickerson, FEC Vice Chair Sean Cooksey and Commissioner James “Trey” Trainor III, all Republicans, also voted in favor of the measure. Commissioners Ellen Weintraub and Shana Broussard, both Democrats, voted against it. 

“This change undermines the commission’s transparency mission,” Broussard said. “The Federal Election Campaign Act requires complaints to be signed and sworn to, under penalty of perjury, and must be notarized,” which “safeguard[s] against frivolous complaints.”

Therefore, “without the ability to confirm or deny the mere existence of a sworn complaint, the agency risks becoming a tool for politically motivated and unsubstantiated allegations.”

Critics say move will make FEC less transparent

Similarly, Weintraub raised concerns that the decision will make the FEC less transparent. “The law allows us to confirm or deny the existence of a complaint; doing so is simply not the same thing as making the contents of a complaint public,” she said.

Michael Beckel, research director at Issue One, a nonprofit that seeks to reduce the role of money in politics, said on Wednesday that the FEC press office can “quash rumor-mongering” by those looking “to score political points” when it can confirm or deny receiving a complaint.

He said he fears this will “incentivize political operatives to make baseless campaign finance allegations against political opponents and never be forced to back up those claims.” 

Two other groups submitted formal comments on the proposal ahead of the vote, both of which were against it. 

Craig Holman, government affairs lobbyist at Public Citizen, a nonprofit consumer advocacy organization, pushed back on the interpretation of the FEC regulations behind the change. 

“This extreme forced silence, beyond preserving the confidentiality of information and records obtained by the commission in the course of an investigation, will likely harm all parties involved, not the least of which is the credibility of the commission,” he wrote. 

Adav Noti, Erin Chlopak and Saurav Ghosh of the Campaign Legal Center, a nonprofit focused on campaign finance and voting rights, argued the proposal was not consistent with the FEC’s enabling statute or regulations.

Also, echoing complaints from the others, they wrote, “as a policy matter, it is not clear that the proposal would benefit anyone.”