U.S. Dist. Judge Gladys Kessler (D.D.C., Clinton) ruled Dec. 19 that documents collected by the Fed. Election Comm’n in investigating alleged campaign finance violations must be kept secret even after the investigation has ended. Kessler acknowledged her ruling “ends a 25-year practice by the FEC to make available to the public the full investigatory record pertaining to any complaint filed once the complaint is resolved.”
The case involved an FEC investigation of links between the AFL-CIO and the Democratic Party during the 1996 campaign. Kessler said she recognized the “serious policy arguments raised” in the case but added that her decision was “compelled by the plain wording” of a provision of the Fed. Election Campaign Act, which requires that FEC investigations be kept secret and sets no time when the investigations can be disclosed. Previously, the FEC has read this confidentiality provision to expire once an investigation was closed.
A separate FECA provision requires the FEC to make public its “determination” of whether campaign finance laws have been violated in each case it investigates. But, this provision can be satisfied, Kessler said, by disclosing only summary documents, such as the FEC general counsel’s report and commissioners’ statements about their votes, not the entire record of a case.
Kessler also addressed constitutional arguments noting that FEC investigations involve political activities that are protected by the First Amendment. She said FEC’s practice of disclosing information from its investigations carries a potential to chill the free exercise of political speech. [BNA 12/21/01]