Redstate

By krempasky Posted in FEC — Comments (0) / Email this page » / Leave a comment »

Well, besides being McCain's pick for the FEC, that is...

Larry Noble is the Executive Director of the Center for Responsive Politics (see here for Democracy Project's take on the place Noble and CRP occupy in Pew-funded reform universe). In that capacity he is often heard to decry the long history of FEC ineffectiveness - drawing a salary, btw from unnamed and undisclosed donations. Interesting only because Noble is, well, pretty enthusiastic about disclosure for everyone else. What he fails to remind his audiences is that from 1987 to 2000 Noble was the chief legal eagle at the FEC. In fact, he began working at the agency in 1977.

True, Noble is a true-believer in Progressive political reform (read: using the power and force of government to restrict and proscribe political activity). We all have political and ideological views, to be sure. Perhaps the more devastating criticism of Noble should be for his complete and utter lack of administrative ability and judgment he displayed while at the Commission.

Read on...

For a guy who said just this week, ""Generally, I think the agency has been afraid to be aggressive in enforcement. It's more concerned with not offending members of Congress than in enforcing the law."

Under his watch an enormous backlog of enforcement cases accumulated at the FEC, resulting in years of delay and frustration for respondents, not to mention the loss of important evidence as memories fade and people disperse. The result of being "aggressive enforcement/" I suppose.

In fact according to Noble's current employer, the Center for Responsive Politics, that backlog hit a high water mark in 1990. As the Center notes, the Noble-era FEC resolved only 35 percent of the enforcement cases before it in 1990. Granted, if you're a power-hitting shortstop that puts you in the Hall of Fame, but how it's grounds for promotion at a regulatory agency is beyond me. That was the lowest percentage of enforcement cases closed in the FEC's history and the third time that the FEC's closure rate fell below 50 percent.

The FEC's 1990 backlog hit a record high despite the fact that its enforcement caseload that year -- 396 -- was the lowest since 1986, according to the CRP. It was just slightly higher than its average yearly caseload during the last 14 years.

The huge backlog led the FEC to dismiss cases without taking them on. During the Noble era, matters were regularly dismissed as "stale" or because the statute of limitations was approaching. To be sure, litigant have complained about delay and inaction from the Commission's earliest days.

To add insult to injury, things improved dramatically after Noble's departure in 2000. Noted Chairman Bradley Smith in remarks made February 2004, "We continue to look for ways to expedite the pace of investigations,and we are seeing progress. Cases are being resolved more rapidly. The number of open, inactive cases has declined from a monthly average of 98 in FY 2000 to just 57 in 2003. The average time to complete action on a MUR (Matter Under Review) has declined by 25% over the past 3 years. Moreover, in FY 2003 only one case was dismissed as stale, as compared to 86 just five years ago, and 13 in FY 2000." See also Smith's statement at the end of 2004, and Chairman Mason's year-end 2002 statement.

Noble's questionable leadership and judgment extended to his choices about legal strategy. Noble would pursue radical legal theories, and take on big cases with volumes of discovery (and expense both for respondents at the Commission) where the law was, at best, unsettled. This could have only diverted resources better used in public education and disclosure, and fostered a poor record in the courts. The only justification I can think of for such an approach is if you believe your primary mission as General Counsel is to accumulate more authority for the Commission through investigative and judicial proceedings - far beyond simply enforcing law.

• Noble resisted court precedents holding that "express advocacy" was required for regulation see Virginia Society for Human Life v. FEC, Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), and FEC v. NOW, 713 F. Supp. 428 (DDC 1989).
• In two express advocacy cases, the courts were sufficiently unimpressed with Noble's position as to award fees and costs against the FEC, see Maine Right to Life Committee v. FEC, and FEC v. Christian Action Network.
• Noble pursued a broad, vague, and legally unsupported test for "coordination" that was rejected in court: See FEC v. Christian Coalition.
• Under his leadership, the FEC litigators contended that political parties had no constitution right to independent political advocacy, and lost FEC v. Colorado Republican Federal Camp. Committee.
• Also, Noble has been unaccommodating to respondents and championed procedures that lacked any respect for their due process rights. In fact, during the FEC's 2004 hearing on its enforcement procedures, he was dismissive about what due process - if any - need be affored FEC respondents. See especially the exchange between Noble and Brad Smith at pages 176-88 of the linked document. Noble's written comments for the enforcement procedures hearing are here.

The Noble record in a nutshell: In his 23 years at the Commission he pursued marginal legal theories, resisted extending procedural rights to respondents, and managed the General Counsel's office into a morass of delayed justice. Since his departure, the FEC is handling more cases; handling them quicker; the backlog of "stale" cases is gone; more and larger fines are levied, all while providing more due process. Marginal court cases are not clogging the litigation calendar.

Like I said, let's not give Noble the ability to vote your arse to the pokey. He'll use it - full speed ahead and damn the torpedos.