Posted August 2, 2007 by J. Gerald Hebert & Paul S. Ryan

Hans von Spakovsky and the Last Straw

Much cyber-ink has been spilled in recent months on this blog and elsewhere regarding the many indiscretions of Hans von Spakovsky, in the context of examining his fitness for Senate confirmation as a Commissioner on the Federal Election Commission.  And though von Spakovsky’s track record at the Department of Justice has been the most common subject of scrutiny, we recently stumbled upon evidence of likely law-breaking by von Spakovsky as an FEC Commissioner.  Yet another law seemingly ignored—and this time it’s a provision of the Federal Election Campaign Act (FECA).

FECA provides that “[n]o action by the Commission or any person, and no information derived, in connection with any conciliation attempt by the Commission . . . may be made public by the Commission without the written consent of the respondent and the Commission.”  2 U.S.C. § 437g(a)(4)(B)(i); see also 11 C.F.R. §§ 111.18(d) and 111.21(b)(making clear that the statutory confidentiality requirement applies to all conciliation negotiations, both pre- and post-probable cause finding).

The law is abundantly clear.  Commissioners are required to hold conciliation negotiations in confidence, absent written consent for disclosure by both the respondent and the Commission.  There is an important policy interest in preventing disclosure of how much either side gave way in conciliation negotiations.  Such disclosure undoubtedly has a chilling effect on the willingness of both sides to engage in settlement negotiations.  The Commission’s conciliation negotiation confidentiality requirement advances the same public policy interests advanced by Rule 408 of the Federal Rules of Evidence, which provides that evidence of “conduct or statements made in compromise negotiations” is generally inadmissible.  Similarly, Rule 68 of the Federal Rules of Civil Procedure generally bars the admission of evidence pertaining to settlement negotiations.

Clearly the Commission’s ability to reach conciliation agreements would be substantially weakened in the absence of this confidentiality provision.  Yet it appears von Spakovsky violated this confidentiality statute in a Statement of Reasons he published December 8, 2006 (In re Oberweis Dairy, Inc. et al., MUR 5410), where von Spakovsky wrote on pg. 2:

The Commission authorized pre-probable cause conciliation with the respondents, and an opening settlement offer of $44,000 was made.  Respondents submitted a counteroffer which was the subject of General Counsel’s Report #2.  While the respondents contend that “their actions did not cause a violation of the law,” they are willing to pay a civil penalty of $10,000 to settle this matter.  See Conciliation Agreement Counteroffer of Respondents, included in General Counsel’s Report #2.  In General Counsel’s Report #2, the Office of General Counsel (“OGC”) recommended that the Commission reject respondents’ counteroffer, but make a final attempt to conciliate this matter before proceeding to the probable cause stage.  OGC proposed to reduce the civil penalty amount to $41,000.  By a 5-1 vote, the Commission agreed with OGC’s recommendation to continue conciliation efforts, but further reduced the civil penalty amount to $21,000.

This passage clearly divulges actions by the Commission and information derived in connection with a conciliation attempt by the Commission.  The “General Counsel’s Report #2” is not available to the public via the Commission’s Web-based Enforcement Query System—presumably because it contains the sensitive conciliation negotiation information disclosed by von Spakovsky seemingly in violation of 2 U.S.C. § 437g(a)(4)(B)(i).  The only way von Spakovsky’s statement would not be a clear-cut violation of federal law is if the respondent and the Commission have both waived confidentiality in writing, and there is no evidence that this happened.  The Commission has never been known to do so in its 32 year history.

Hans von Spakovsky has once again demonstrated his careless disregard for the laws and policies of our federal government.  If the Senate is still seriously considering von Spakovsky’s nomination after everything that has come out about him to date, we can only hope that this latest revelation will be the straw that breaks the camel’s back.