Changes at the FEC

FEC General Counsel Larry Norton and his top deputy, Jim Kahl, are leaving the agency to join the law firm of Womble Carlyle Sandridge & Rice (whose lead name partner is the late Bunyan Snipes Womble – really – known to friends as "B.S." – really).  Naturally, the "reform" community is alarmed. 

Many of my fondest memories of my five plus years as an FEC Commissioner are of visiting with the career staff, and one of my major regrets is not having made more time to do so.  I did not always see eye-to-eye with the staff, to be sure, but they were a great and for the most part very talented bunch.  Larry Norton and Jim Kahl were at the top of the list, not just in the hierarchical charts but as consummate professionals. 

Norton’s tenure could be viewed as somewhat starstruck.  If memory serves me correctly, Larry’s first day on the job was September 11, 2001.  Events of that day, of course, make campaign finance seem a rather trivial concern.  Nonetheless, the ensuing five years were big ones for the FEC.

During the Norton/Kahl tenure (Larry hired Jim as his top deputy a few months after joining the agency), the Counsel’s office eliminated the backlog of cases that had long caused the FEC to merely dismiss many cases in batches as "stale."  The time it took the FEC to investigate cases was cut dramatically.  Some – not enough, in my view, but some – added due process protections were provided to respondents.  Yet fines collected by the FEC increased dramatically.  Throughout the 1990s, it had often been said that in dealing with the FEC, "the punishiment is the process."  Under Larry Norton’s leadership at the Office of General Counsel, the FEC took huge steps toward assuring that the process was fair and the punishment was the punishment. 

At the same time, the FEC took on a major regulatory role, caused by the passage of McCain-Feingold just six months after Norton took office.  The agency did the unheard of in Washington – it completed an extensive, complex set of regulations within just 90 days of the bill becoming law.  The agency has maintained a very busy regulatory schedule since.  Additionally, the Agency successfully defended the McCain-Feingold law in federal court.  Now these are not all policy developments that thrill me, but they do represent a triumph of good management in government.  Credit can be spread over many people, including the commissioners who pressed for change and the mid-level management and staff at the FEC that implemented these changes on the front line, but much of the credit has to go to Norton and Kahl. 

During all this time, the "reform community," which had more or less had run of the Commission throughout the 1990s when the agency developed the reputation for sclerosis that Norton and Kahl worked to address, never ceased sniping at the agency, complaining about most everything the agency did, and lobbying for the creation of a campaign finance czar – presumably drawn from their own ranks – to replace the agency.

Thus, the response of the "reform" community to the departure of Norton and Kahl is in character.  Forever chewing its nails, the "reform community" is, according to the Washington Post, "concerned."  Heaven forbid it should not be.  The Post quotes at length Paul Ryan, a competent young lawyer who, however, has never worked a day in his life at the FEC, expressing his "concern:" "The commissioners ‘no longer seek the general counsel’s opinion publicly with respect to answering difficult questions of law."

Now I will say that Larry Norton and I did not always agree, just as I am sure he did not always agree with any other Commissioner.  But I always valued Larry’s advice, and I never had the impression that he felt inhibited in giving it.  As I mentioned, Larry and Jim were both consummate professionals.  To this day, I could scarcely tell you thing about either man’s political leanings, or even their views on what the "ideal" campaign finance regime would look like.  Their job was to manage the Department and provide quality professional and legal advice based on the statute and the constitution.  That is what they did, and did well.  Why the Post would devote substantial space to Mr. Ryan’s speculation on the internal workings of the FEC is just a minor curio of its own, though it perhaps tells us something of the "reform" community’s influence over the mainstream press.

It is true, though, that one thing Mr. Norton did not do was publicly air his disagreements with the Commission.  I have never understood it to be the role of a lawyer to publicly disagree with or seek to embarrass his clients, but apparently some in the "reform" community – which likes to think of itself as setting the standard for professionalism – disagree.  The "reform community" seems under the mistaken impression that the Commission works for the General Counsel, not the other way ’round.

What is interesting, though, is that despite what it sometimes says, the "reform" community doesn’t really believe that the FEC ought to presumptively follow the advice of its counsel.  That is, the "reform" community is always quick to excoriate the Commission for overruling a policy recommendation of the Counsel that calls for more regulation; but it never considers it a defense of the Commission that it follows the advice of its counsel in a decision leading to less regulation.  Listen to John McCain carry on about the FEC’s decision not to fine "Republicans for Clean Air," a group that was critical of McCain during the latter’s failed 2000 presidential run, or witness the reaction of the "reform" community when the Counsel recommended further study of the "527" question in the spring of 2004, rather than adopting a rule, and you will understand what I mean.  

In any event, I do not wish the observations on the Press and the "reform" community to overshadow my main message.  Messrs. Norton and Kahl served the FEC at a sometime tulmutuous and always busy time.  During the period, the Office of General Counsel successfully won one of the most sprawling cases ever to reach the courts; implemented a complex law in near record time; handled a number of contentious regulatory matters, one of which generated over 100,000 public comments; and improved its enforcement processes.  Let’s give credit where credit is due.

We commend both men for their service and wish them well in the private sector.

 

The Center for Competitive Politics is now the Institute for Free Speech.