FEC flip-flops on public access to files from Democratic Party-union probe

Friday, June 22, 2001

Staffers of PoliticalMoneyLine, a watchdog group devoted to keeping tabs on election and campaign-finance funding, make regular visits to the Federal Election Commission to find and photocopy records.

What they found last month was far from routine.

Staffers uncovered a treasure trove of newly released documents detailing how the Democratic Party worked with one of the nation’s largest labor unions during the 1996 election campaigns. PoliticalMoneyLine Co-director Kent Cooper said staffers brought back two huge filing boxes.

But a few days later, the FEC withdrew all 6,024 pages from public view, responding to complaints from the Democratic Party and the AFL-CIO that the records contained trade secrets and personal data. The commission announced this week that it had rejected those complaints and would not suppress all of the documents.

The FEC’s latest decision about the files worries officials with both the Democratic Party and the AFL-CIO. Both groups said they are considering legal action to keep the records closed until the sensitive material can be redacted.

And that, in turn, worries PoliticalMoneyLine’s Cooper. Although he has the records in hand, Cooper said the Democrats’ demand to seal the files and the FEC’s initial willingness to do so may have set a bad precedent for releasing records in the future.

“They sort of bought the argument that [the documents] shouldn’t be made public immediately,” he said in a telephone interview. “The burden should probably be on keeping them open and then see if something needed to be redacted.”

The Republican Party seems to be in agreement. Last week, the GOP questioned the FEC’s initial effort to re-seal the files, demanding in legal papers an explanation as to why the records were pulled.

“Compounding the seriousness of this bizarre action by the commission is the fact that the removal — and presumably the explanation for the removal — was conducted in secret,” said Michael Toner, general counsel for the Republican National Committee, in legal papers filed with the FEC last week.

His motion demanded an explanation for the removal of the records and requested that they be made public again quickly.

The records come from a lengthy FEC investigation that looked into how closely the state chapters of the Democratic Party, the Democratic National Committee and the AFL-CIO worked during the 1996 elections. The FEC reported that it found “an extraordinary degree” of coordinated activity.

But the commission opted to close the case last year in the wake of court decisions in another a case involving the Christian Coalition and its biannual voter guides.

In 1999, a federal judge rejected the FEC’s claims that the voter guides were partisan activities designed to help Republican candidates and, thus, should be treated as contributions under federal law. The FEC declined to appeal the case.

Under FEC policy, the commission must review all records from closed or resolved cases and release all records not expressly exempt from Freedom of Information laws within 30 days. The FEC first released the documents in the Democratic Party/AFL-CIO case last month.

An FEC spokeswoman said the commission withdrew the records five days after their release pending “an administrative review to make sure the right documents were made public.”

Rick Hess, a spokesman for the Democratic National Committee, agreed that the bulk of the documents should be public but said that quite a few must be exempt. He described some of the documents as “the bread and butter of how we do business.”

“The alternative would be, why not invite the Republicans into the Democratic National Committee offices and let them have a photocopy of everything,” Hess said in a telephone interview.

Harry Hammitt, publisher of Access Reports, a newsletter chronicling open-government issues, described the FEC’s handling of the records as “an unusual policy choice.”

Advocates for open government understand the need to protect privacy, Hammitt said, but the culling of records for social security numbers and other possible exemptions to the Freedom of Information Act should occur before public release, not after. And if it must be done after, the records should remain open in the meantime.

“The FEC, from my perspective, took the easy way out,” he said in a telephone interview. “One reason why it should stay in the public domain is that it’s hard to get it back.”

Cooper of PoliticalMoneyLine agreed, noting that copies of the records sit in two large file boxes in his office, open for perusal to almost anyone who asks for it.

He said that in today’s Information Age, such information tends to be disseminated far and wide. He suggested that the FEC trying to pull back records was akin to putting “a genie back into the bottle.”

“That argues for getting it right in the first place with policy and procedures that have gone through public comment,” he said. “When you veer away from that is when people have to start to worrying about what’s the exemption and reasons.”

But Cooper stressed that he strongly believed that the withdrawn documents and other information like it should be placed into public view as quickly as possible, particularly when it could give others an understanding of how the FEC interprets federal election law.

“That’s good information that should be out in public,” Cooper said. “It should help people in future cases about what’s right and wrong. If you don’t have that data out there you don’t know how they will draw the line.”

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