The latest from the Brennan Center:
Ultimately, any system of rules is only as good as the body that enforces them. Most Americans want strong campaign finance rules, which require an FEC committed to enforcing duly enacted laws in a timely and evenhanded manner. Congress should use the opportunity presented by this oversight hearing to press the FEC to fulfill its statutory mission. And lawmakers should continue to pursue legislative solutions to make the commission work better.
The government agency tasked with investigating campaign finance violations is on its way to intentionally making that very obligation more difficult to accomplish.
The Federal Election Commission is a notoriously deadlocked agency that has nonetheless taken some significant enforcement actions in recent years. In 2019, for instance, the FEC issued record fines in relation to a Jeb Bush super PAC’s acceptance of $1.3 million from a Chinese-owned corporation. Last year, the agency fined Marathon Petroleum Company for giving $1 million to Republican party campaign committees while the fossil fuel company had existing contracts with the federal government.
Now FEC Commissioner Allen Dickerson, who was appointed by President Donald Trump, is pushing a rules change that would encumber the agency’s ability to investigate such violations. The proposal would require the FEC’s Office of General Counsel to get explicit approval from the commissioners for any investigative activity, no matter how big or small.
And because of the lack of cooperation the IG could not really tell if Trainor broke any rules.
Bipartisan Policy Center has this explainer, which “identifies the primary entities from each branch of the federal government with a role in elections and their overlap and inter-agency collaboration to equip election stakeholders to better use existing resources and advocate for needed improvements.”
Tampa Bay Times reports: “Nearly five years after Floridians voted to allow people with felony convictions to restore their voting rights, the coalition that pushed for the change is suing the state, arguing Florida created a system that impedes the will of the voters.” You can find the complaint on behalf of the Florida Rights Restoration Coalition and four individuals here, and more coverage in WaPo and Axios.
Sensible result (vote totals). Not clear why this took so long to make public.
The claim was that these grants were meant to help Biden win, but there was no evidence of that. (Similar claims have been made about money from the Zuckerberg-Chan Foundation, also without evidence, and it has led many red states to ban private funding to help with election administration.)
Late last year, I highlighted a federal court’s decision to throw out a challenge to the FEC accepting paperwork for Donald Trump’s presidential candidacy on the ground that he was ineligible to serve. Last month, in an unpublished per curiam opinion, a panel of the the District of Columbia Circuit affirmed dismissal: “appellant has not shown that he has Article III standing to pursue Count Two of his complaint. See generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).” As I wrote last year, challenges to Trump’s candidacy won’t take place through FEC candidacy lawsuits, and we’re slowly seeing that play out in the courts now.
You can see the DC Circuit’s unanimous opinion in Campaign Legal Center v. Federal Election Commission, here. The introduction of the opinion:
Heritage Action for America appeals the denial of its post-judgment motion to intervene as of right, FED. R. CIV. P. 24(a), in Campaign Legal Center’s challenge to the Federal Election Commission’s failure to act on its administrative complaint. The district court found the motion was untimely because prior to judgment it became clear Heritage Action’s interests would not be protected and delay in considering the complaint would prejudice Campaign Legal to the detriment of Congress’ enforcement scheme. Heritage Action had not yet received the Commission’s response to a Freedom of Information Act request filed 41 months after the administrative complaint, but the record supports the district court’s findings upon applying the test in Cameron v. EMW Women’s Surgical Center, 142 S. Ct. 1002, 1012 (2022). Accordingly, the court affirms the denial of intervention and dismisses the merits appeal for lack of appellate jurisdiction.
This decision seems a sound and straightforward result. But of course the FEC could not agree.
The Federal Election Commission has dismissed a complaint from Republicans that Google’s Gmail app aided Democratic candidates by sending GOP fundraising emails to spam at a far higher rate than Democratic solicitations.
The Republican National Committee and others contended that the alleged benefit amounted to unreported campaign contributions to Democrats. But in a letter to Google last week, the FEC said it “found no reason to believe” that Google made prohibited in-kind corporate contributions, and that any skewed results from its spam filter algorithms were inadvertent.
“Google has credibly supported its claim that its spam filter is in place for commercial reasons and thus did not constitute a contribution” within the meaning of federal campaign laws, according to an FEC analysis reviewed by The Wall Street Journal.
The RNC and other campaign committees argued that Google’s “overwhelmingly disproportionate suppression of Republican emails” constituted an illegal corporate contribution to Democratic candidates.
But the FEC disagreed, finding that Google established that it maintains its spam filter settings to aid its business in keeping out malware, phishing attacks and scams, and not for the purpose of benefiting any political candidates.
Rep.-elect George Santos has admitted to “embellishing” his resume with fake stints on Wall Street and a phantom college degree. He’s still trying to defend against accusations that he pretended to be Jewish.
But the burning question for many people, including his soon-to-be Republican and Democratic colleagues in Congress, is simple: Where did he get the money to fund his campaign?
“Where did all that money come from?” Rep. Ritchie Torres, D-N.Y. tweeted on Tuesday. “The Ethics Committee MUST start investigating immediately.”
When he first ran for Congress in 2020, Santos, who appears to have suffered from financial trouble for much of his adult life, filed disclosures listing no assets and a salary of $55,000, which he earned as a vice president at LinkBridge Investors, a business development firm. But the filings from his most recent run suggest he came into sudden riches, making between $3.5 million and $11.5 million from a company he founded called the Devolder Organization in 2021. He loaned his campaign more than $700,000.
In a phone conversation with Semafor, Santos offered a short tick-tock of how he made his money that left certain key details unanswered. …
The partisan split makes the FEC “an unusual agency,” said Commissioner Ellen Weintraub, a Democratic appointee. “Everyone anticipated from the get-go that that was going to make enforcement challenging, and they built in this fail-safe provision that complainants could sue.” Now, she said, “these decisions eviscerate that.”
The earlier ruling already caused a district court judge in D.C. to reverse himself and rule in favor of the GOP-aligned American Action Network accused of engaging in electioneering while calling itself a nonprofit to avoid disclosing its donors.
Chairman James Trainor III, a Trump appointee, said in 2020 that outside groups were using lawsuits “as [a] weapon against the speech rights of their political opponents.”…
The bipartisan requirement has stymied high-profile, politically contentious cases since the FEC was formed in 1974. But in recent years, Republican appointees have expressed general opposition to campaign finance regulations and blocked enforcement in cases involving both parties.
A Republican former commissioner who helped block the New Models case said in a 2018 radio interview that fewer restrictions on campaign spending were “a good thing for democracy” that helped “more people to become involved in politics” without “being harassed by people who disagree with them.”
A dispute over nominees, with Republicans unwilling to name new commissioners unless the Democratic appointees were also replaced, left the commission without enough members to function during the 2020 election cycle.
Rick Hasen, an election law expert at UCLA Law, said he expects the ruling will only further a “deterioration” in the effectiveness of the FEC that has been going on for the past 15 years. According to a report by a former Democratic appointee, less than 5 percent of enforcement votes in 2006 resulted in a deadlock; a decade later more than 30 percent did.
“There used to be more moments of cooperation and less obstructionism and more fighting things out,” he said. Now “the Republican commissioners have a way to render many of their opinions essentially unreviewable by the courts.”
Weintraub said there has been some bipartisan cooperation in recent months, but not on enforcement actions.
“I can’t recall the last time we had four votes to even investigate … dark money cases,” she said. She predicted the ruling “will contribute to the amount of dark money that is raised and spent on our elections” and “make it increasingly difficult for the commission to enforce the law.”
Sean Cooksey, a Trump appointee to the FEC who previously worked for Sen. Josh Hawley (R-Mo.), tweeted that the ruling is an “important decision on separation of powers principles.” (He went on to suggest that one of the nonprofits advocating for greater FEC oversight was hypocritical for taking money from alleged cryptocurrency fraudster Sam Bankman-Fried.)
This is a travesty and renders the judicial review procedures of FEC actions mostly meaningless. Judge Millett’s dissent from the denial of en banc review begins:
Essential to the rule of law is the principle that a governmental agency cannot become a law unto itself. Yet that is what the court’s decision here permits. The opinion licenses a minority
within a federal agency to pronounce extensive and substantive legal determinations that will affect the course of agency decisionmaking and the behavior of regulated parties, while inoculating those decisions from judicial review just by tacking a fleeting reference to prosecutorial discretion on at the tail end of the decision.
According to the court, that sleight of word bars all judicial review even when the substantive legal analysis is expressly denominated an “independently sufficient” basis for decision, separate and apart from any claim of prosecutorial discretion.
Worse still, it eviscerates the explicit private right to judicial review that Congress wrote into the Federal Election Campaign Act. It hamstrings review even when, as here, the agency’s reading of federal law openly defies a federal court order holding that very same statutory interpretation unlawful.
I would not arm an agency minority with what is in effect a judicial-review kill switch. Neither am I able to turn my back on such agency disregard not only of an adverse court judgment, but also settled statutory requirements and this court’s binding precedent. For those reasons, I dissent from the denial of rehearing en banc.