In need of some way following the Watergate scandal to regulate the money that pours into political campaigns, Congress passed the Federal Election Campaign Act in 1974. Congress followed up the next year by creating the Federal Election Commission. Acting as an independent regulatory agency, the FEC acts as a repository of campaign finance disclosure forms filed by candidates; enforces the legal limits and prohibitions regarding campaign contributions; and oversees public financing of presidential elections. Six commissioners, appointed by the president and confirmed by the Senate, preside over the agency. No more than three commissioners can belong to the same political party, and at least four votes are required for the commission to act. The agency has 350 employees and an annual budget of about $67 million.
General Counsel Anthony “Tony” Herman oversees 120 employees, 90 of them lawyers. The office itself is split into five divisions, led by associate general counsel. The Policy Division drafts advisory opinions and regulations. Other duties include writing memoranda interpreting the federal campaign finance laws, fielding questions from Congress and keeping up with changes to campaign legislation.
The Enforcement Division, the largest with 45 lawyers, investigates alleged violations of campaign finance laws and recommends whether and how the commission should pursue suspected violations. Other government agencies can refer enforcement matters to the FEC. The division also negotiates conciliation agreements with errant politicians.
The division that most closely resembles a corporate legal department, Herman said, is General Law and Advice. It comprises both an audit review team, which advises about legal issues that arise in the administration of public-financing programs for presidential elections, and the administrative law team, which advises on a broad range of legal issues.
The Litigation Division represents the commission before federal district courts and the courts of appeals in all civil litigation involving campaign finance laws. When disputes wind up before the U.S. Supreme Court, the division assists the solicitor general’s office. Finally, the Office of Complaints Examination and Legal Administration oversees strategic planning and information technology.
Unless a matter goes to the Supreme Court, Herman said, the office “performs virtually all work in-house.”
Herman describes his role this way: “My job is to put aside politics and ideology and to give the commission my best independent advice — in an environment that is by its very nature intensely political and often very charged.” These are matters of no small moment, he said — they cut to the heart of the entire system of electing public officials. “Which add both the fun and the challenge to the job,” Herman said.
The commission is one of a small number of federal agencies that carry their own litigation authority; The only time it cannot represent itself is before the Supreme Court. However, in public-finance cases, Herman’s department represents the commission up to that point.
In the most important campaign case to come before the justices in perhaps a century — Citizens United v. Federal Election Commission, Herman and his staff worked in close collaboration with the solicitor general’s office in producing briefs and prepping for arguments before the court.
Herman’s office also coordinates with other government agencies in enforcing the Federal Election Campaign Act, most often with the U.S. Department of Justice. “We have exclusive civil jurisdiction in violations of Federal Election Campaign Act, and the Department of Justice has exclusive criminal jurisdiction,” he said.
Herman reports to the six commissioners and, he said, offers advice based on his best reading both of the law and the commissioners’ opinion. Given the partisan split built into the system, this isn’t always easy, and he sometimes finds himself disagreeing with one side or the other. “I handle this challenge by trying to have free, open and respectful communications with all six commissioners on important issues — and by carefully listening to and taking into account their views before coming to my own independent view, as I believe the statute requires,” he said.
At the moment, the commission comprises three Republicans, two Democrats and one political independent. According to Herman, Steven Walther, the independent commissioner, frequently but by no means always votes with the Democrats.
Deadlocks do occur. In June, for example, the commission’s Republican members disagreed that the conservative-leaning American Future Fund’s use of President Obama’s voice and the phrases “the White House” and “the administration,” referred to a “clearly identified candidate” and therefore constituted “electioneering communication,” subject to disclosure laws that required the group to reveal its financial backers.
ROUTE TO THE TOP
Herman earned his Bachelor of Arts degree from the University of South Carolina and his J.D. from Harvard Law School. He then clerked for Judge Irving Goldberg of the U.S. Court of Appeals for the Fifth Circuit and taught at Florida State University College of Law. Before becoming general counsel of the FEC in September 2011, Herman was a partner at Covington & Burling, where he maintained a broad litigation practice. He is quick to credit the pro bono work he did there for preparing him for his position at the commission. He was chairman of Covington’s public service committee and oversaw all the firm’s pro bono work.
“This helped me learn how to deal with disparate and often strongly held views among the partners on various policy issues that informed which pro bono cases were appropriate for the firm to handle,” he said. At the commission, “I do everything I can to encourage my staff to do pro bono work.”
When the commission was in need of a new general counsel, a search firm contacted Herman on the agency’s behalf. The initial contact was only the beginning of a long process; he went through numerous interviews with all of the commissioners, he said. What sold them, Herman said, was time he had spent representing federal agencies and advising the Federal Aviation Commission.
Asked what advice he would offer his eventual successor, Herman said: “Effective leadership is largely a product of having strong listening skills. In terms of staff, it is important to be inclusive in decision-making, which is a subset of listening skills.”
Herman was born in San Francisco but his family soon moved to Philadelphia and from there to South Carolina, where he spent his teen years. He and his wife, Melanie, have two children: Matthew and Isabella. His hobbies include hiking, traveling, reading and working out.
LAST BOOK AND MOVIE
Wild: From Lost to Found on the Pacific Crest Trail, by Cheryl Strayed; Arbitrage.