15 October 2017 — 1707 mdt
Here’s why FEC stiffed Lutey on Dem’s Fagg complaint
When Billings Gazette reporter Tom Lutey tried to run down people connected with a complaint, filed with the Federal Election Commission, against Russell Fagg by a Washington, D.C., outfit associated with Hillary Clinton’s brass-knuckled booster David Brock, Lutey was unable to confirm the complaint by calling FEC:
On Oct. 6 national Democratic groups joined the ethics targeting. The American Democratic Legal Fund announced that it had filed a complaint with the Federal Elections Commission that Fagg’s exploratory committee was violating federal election law.
More than a week after ADLF said it filed, the Federal Elections Commission has no record of receiving the complaint. The Gazette has called the FEC daily to check on the status of alleged filing.
I prowled FEC’s website for the complaint, but also came up empty. But I did come up with these nuggets that explain why at FEC, the ADLF’s complaint is in a black hole.
First:
Once a complaint is deemed sufficient, OGC assigns it a Matter Under Review (MUR) number, acknowledges receipt of the complaint and informs the complainant that the Commission will notify him or her when the entire case is resolved. Until then, the Commission is required by law to keep its actions regarding the MUR confidential. https://transition.fec.gov/pages/brochures/complain.shtml
That explains why we couldn’t find the complaint on FEC’s website. The https://transition.fec.gov/em/respondent_guide.pdf explains why the complaint was released by the complainers, and why Fagg probably will release his response to the complaint:
Until the matter is closed, the Commission is required by law to keep its actions regarding the MUR confidential. 2 U.S.C. § 437g(a)(12). Confidentiality requirements, however, do not prevent a complainant or respondent from disclosing the basis of the complaint. Information about a Commission notification of findings or about a Commission investigation may not be disclosed before the matter is made public, unless the respondent waives the right to confidentiality in writing. Before the Commission votes on OGC’s recommendation as to any complaint, respondents will have an opportunity to review and respond to the complaint. See Sections II.B.1 and II.C below. [Page 7.]
♦ ♦ ♦ ♦ ♦
R. Confidentiality To protect the interests of those involved in a complaint, the law requires that any Commission action on a MUR be kept strictly confidential until the case is resolved. 2 U.S.C. § 437g(a)(12). These provisions do not, however, prevent a complainant or respondent from disclosing the substance of the complaint itself or the response to that complaint or from engaging in conduct that leads to the publication of information contained in the complaint. [Page 22, emphasis added by FM.]
There’s more, but it all boils down to FEC’s saying “We gotta keep the complaint secret, but the complainers and the complained about can shout their cases from the rooftops and distribute their filings to the public.” It amounts to the prosecution and defense publicly arguing their cases on the courthouse steps during recesses in a secret trial.
I think FEC’s unlikely to rule that Fagg flouted the law. He stretched the exploratory committee loophole big enough to drive his bandwagon through it, but that’s why exploratory committees exist. The remedy is not allowing exploratory committees.
The complaint’s existence allows Democrats and Jon Tester’s campaign to allege that Fagg is an unethical man, and by implication, was an unethical jurist, and thus a person morally unsuited to be a U.S. Senator. Whether that charge will cause voters to choose another candidate remains to be seen.