Resignation of Lawyers at FEC Raises Concern

By Matthew Mosk
The Washington Post

Thursday 18 January 2007

The announcement yesterday that the top two lawyers for the Federal Election Commission had resigned helped spread an undercurrent of concern about the diminishing role of a once-prominent public voice on the intersection of money and politics.

The stated reason for the departures of FEC General Counsel Lawrence H. Norton and Deputy General Counsel James A. Kahl was that the two men had landed private-sector jobs at a large firm with offices in six states. Norton and Kahl, reached yesterday, said their resignations were not intended to send any broader message.

But those who monitor campaign finance law with some dedication said the departures coincided with a perceived shift in the way the commissioners have worked with the general counsel.

Paul S. Ryan, a lawyer who monitors the FEC for the Campaign Legal Center, said the general counsel was once free to opine publicly about pressing policy matters but that has not been the preference of the commissioners as of late.

"The influence of the general counsel has clearly been diminishing," Ryan said. The commissioners "no longer seek the general counsel's opinion publicly with respect to answering difficult questions of law."

Lawrence M. Noble, who served as general counsel for 13 years before leaving the FEC in 2001, said he has noticed the same trend, though he did not know if it contributed in any way to his successor's departure.

"It's fair to say the commissioners are looking less to the general counsel for policy advice than they may have previously," Noble said. "What we've seen, in certain areas, is that the general counsel's office is not coming up with recommendations as it once had, at least not publicly."

That shift, if it in fact is occurring, comes at a time when the agency will handle some vexing policy matters, including the continuing implementation of the 2002 campaign finance reforms, a persistent debate over the activities of independent groups and oversight of a presidential election that is expected to test the outer bounds of fundraising limits.

FEC Chairman Robert D. Lenhard said the commissioners, and the general counsel, will approach all of those matters in the same way they always have. He has not seen "much of a pattern or trend or evolution in the role there."

Some of those who put the FEC under a microscope "are reading too much into a couple of different cases," Lenhard said. "The general counsel is free to speak his mind in open session and in executive session."

One case under that microscope, Ryan said, examined whether political parties could raise and spend unlimited amounts of campaign money on recount drives.

When the parties asked the FEC in 2002 and 2004 to allow them to spend money that way, Ryan said, Norton's public comments opposing the idea persuaded the parties to withdraw their requests. In 2006, though, Norton made no recommendation, and the parties persevered, brokering a deal with the FEC on the issue, Ryan said.

"To me, it was an obvious sign that the general counsel was no longer being allowed to recommend a course of action," Ryan said.

Norton and Kahl dispute this analysis of why they resigned.

"I'm not shocked people would read that into our decision, but it has nothing to do with it," Kahl said.

He and Norton said they are leaving together to give the firm Womble Carlyle Sandridge & Rice a sizeable footprint in the fast-changing area of campaign finance law.

"I've had as free a hand as ever to give the commission unvarnished advice," Norton said. "I have had ample authority, all the authority I need."

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