Category Archives: federal election commission

Republican FEC Commissioners: Twitter Entitled to Press Exemption for Excluding NY Post Content on Hunter Biden

Dickerson/Trainor statement:

Moreover, the decision as to precisely which news to distribute is, in many ways, the sine qua non of “the business of producing…news stories, commentary,
and/or editorials.”27 The New York Times famously emblazons its masthead with the slogan “All The News That’s Fit To Print,” suggesting the paper’s published materials were carefully selected and contextualized to fit the Times’s subjective view of “news” that is “fit to print.” That is precisely what Twitter did here: it made the editorial judgment that links to the New York Post articles were not “fit to print”—or, restated, “fit to share.”


Under FECA, then, Twitter is likely a press entity.28 Even so, under the Act press entities only get the media exemption’s protections when they act in their “legitimate press function,” which we have historically viewed under a two-part analysis: “(1) whether the entity’s materials are available to the general public, and (2) whether they are comparable in form to those ordinarily issued by the entity.”29 Twitter’s platform is available to any American willing to access it via an app or web browser. And when Twitter chooses to limit the sharing of a news story, it does
not fundamentally change the appearance or underlying function of the platform itself. Indeed, Twitter argues that its content moderation policies are central to its users’ experience and a core part of its overall commercial product.30
Accordingly, Twitter’s activities fall within our press exemption. But this regulatory safe harbor operates as a floor, not a ceiling. As the Citizens United Court noted, the judicial branch has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”31 So even if Twitter’s decision to limit distribution of the New York Post’s articles were not protected by the Act’s press exemption, it would likely be protected by the Constitution itself.

See also the Cooksey statement.

(h/t Shane Goldmacher)

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“The F.E.C. dismisses claims that Twitter illegally blocked a Hunter Biden article.”

Shane Goldmacher for the NYT:

The Federal Election Commission has dismissed Republican accusations that Twitter violated election laws in October by blocking people from posting links to an unsubstantiated New York Post article about Joseph R. Biden Jr.’s son Hunter Biden, in a decision that is likely to set a precedent for future cases involving social media sites and federal campaigns.

The F.E.C. determined that Twitter’s actions regarding the Hunter Biden article had been undertaken for a valid commercial reason, not a political purpose, and were thus allowable, according to a document outlining the decision obtained by The New York Times.

The commission’s ruling, which was made last month behind closed doors and is set to become public soon, provides further flexibility to social media giants like Twitter, Facebook and Snapchat to control what is shared on their platforms regarding federal elections.

The suppression of the article about Hunter Biden caused an avalanche of conservative criticism in October and prompted accusations that the tech company was improperly aiding the Biden presidential campaign, including a formal complaint by the Republican National Committee that said Twitter’s actions amounted to an “illegal in-kind contribution” to the campaign.

But the F.E.C. disagreed. The commission said Twitter had “credibly explained” that blocking the article’s distribution was a commercial decision and that the move followed existing policies related to hacked materials, according to the “factual and legal analysis” provided to the parties involved in the complaint.

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“F.E.C. Dismisses Case Against Democrats Over Outreach to Ukraine”

NYT:

The Federal Election Commission has dismissed a complaint by an ally of President Donald J. Trump accusing the Democratic Party and one of its former consultants of violating campaign finance laws by working with Ukraine to help Hillary Clinton’s 2016 campaign by damaging Mr. Trump’s.

An unusual bipartisan combination of members of the commission voted against pursuing a complaint filed in 2017 by Matthew G. Whitaker, a former federal prosecutor and staunch defender of Mr. Trump who was later appointed acting attorney general.

He filed the complaint after Mr. Trump and his White House began publicly calling for investigations of the matter in an effort to deflect attention from revelations that Mr. Trump’s son Donald Trump Jr. and other campaign advisers met with a Kremlin-connected Russian lawyer at Trump Tower during the 2016 campaign.

Mr. Whitaker claimed in his complaint that the Democratic National Committee and a consultant who had worked for it, Alexandra Chalupa, violated a prohibition on foreign donations by soliciting damaging information and statements from Ukrainian government officials about Paul Manafort, who was Mr. Trump’s campaign chairman at the time….

he commission — which is composed of three members selected by each party — voted 4 to 2 in April that there was not probable cause to believe that Ms. Chalupa and the Democratic National Committee broke the law, according to documents released Wednesday.

The four commissioners voted against a recommendation by the commission’s general counsel to find probable cause that Ms. Chalupa and the Democratic National Committee violated the foreign donation ban by trying to arrange an interview in which Petro O. Poroshenko, the Ukrainian president at the time, might say something critical about Mr. Manafort.

While the four commissioners issued statements disputing the general counsel’s characterization that Ms. Chalupa’s communications with the embassy prompted the ban, they also offered very different ideological concerns.

The three Republican commissioners said in a statement accompanying the decision that they had “grave constitutional and prudential concerns” about the general counsel’s reading of the law, which they cast as an overreach. Ms. Chalupa’s communication with the embassy, they wrote, “did not ask that Ukrainian officials convey a thing of value within the meaning of a ‘contribution’ to the D.N.C.”

The Republicans were joined in voting against probable cause by Ellen L. Weintraub, a Democratic commissioner since 2002, who cited concerns about Russian disinformation as a basis for her vote.

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“Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever”

NYT:

For more than a decade, Democrats seeking more robust enforcement of election laws and transparency measures have been routinely routed at the F.E.C., the nation’s top campaign watchdog agency. They have complained bitterly that Republicans have weaponized the commission’s bipartisan structure — there are three commissioners allied with both parties — to turn it into a toothless, do-nothing bureau.

Now, the Democratic commissioners have stealthily begun to strike back by leveraging some of the same arcane rules that have stymied enforcement efforts for years — namely, that a bipartisan vote is necessary to do almost anything — to make the agency do even less. The goal appears to be to take a commission widely seen as dysfunctional and create further deadlock, compelling federal courts to fill the breach when it comes to policing federal election law.

“I think of it as a desperate cry for help,” said Adav Noti, a former lawyer at the F.E.C. who is now a senior director at the Campaign Legal Centera nonpartisan watchdog group that is among those that have sued the F.E.C.

If successful, the gambit could have far-reaching implications for future campaigns and for pending F.E.C. complaints from the 2020 election, like one that accused former President Donald J. Trump’s campaign of laundering hundreds of millions of dollars through limited liability companies to conceal whom his campaign was ultimately paying.

The chief architect behind the strategy is Ellen L. Weintraub, a Democratic F.E.C. commissioner since 2002, who described it as something of a last-ditch effort after years of watching enforcement actions become sidelined in 3-3 split decisions. “I’m using the small amount of leverage that I have,” she said. “It’s not a lot.”

Here is what has been happening behind closed doors, according to people familiar with the commission’s private executive sessions: First, the Democrats are declining to formally close some cases after the Republicans vote against enforcement. That leaves investigations officially sealed in secrecy and legal limbo. Then the Democrats are blocking the F.E.C. from defending itself in court when advocates sue the commission for failing to do its job….

The combination of moves takes advantage of existing provisions in campaign law to essentially open the door for outside advocacy groups to directly sue campaigns in federal court. In fact, it is already happening, including in one case involving a group that spent money supporting Senator Joni Ernst of Iowa and that is accused of improperly existing as a nonprofit to shield its donors from public disclosure.

“If I don’t believe the case ought to be dismissed, why would I vote to dismiss?” Ms. Weintraub said of leaving cases pending. “I’m just trying to get the law enforced.”

The Republican commissioners are livid. Commissioner Sean J. Cooksey has warned his Democratic colleagues that they are going down “a very, very dark road” and revealed in a recent memo that there are now 13 such unclosed cases, calling them “zombie matters — dead but unable to be laid to rest.” Commissioner Trey Trainor said in an interview that the Democrats were “poisoning the well” at the agency with a tactic that he said was “an abuse of the process.”

“They are on the losing end of the 3-3 votes, and they think that by concealing the information from the courts, they’ll get a different ruling,” Mr. Trainor said.

Ms. Weintraub said: “I didn’t bust the norms of the agency. The other side did.”

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“Opinion: Close this FEC loophole that killed the case over Trump’s payment to Stormy Daniels”

FEC Commissioner Ellen Weintraub’s WaPo oped:

But when the FEC’s professional legal staff recommended the commission investigate, two Republican commissioners instead tanked the case without a word about its merits. Since Cohen had already been prosecuted, they said, “pursuing these matters further was not the best use of agency resources.”

Now, we’re pretty busy at the FEC, digging out from all the matters that piled up for more than a year while we were short on commissioners — and therefore unable to decide cases.

But are we too busy to enforce the law against the former president of the United States for his brazen violation of federal campaign finance laws on the eve of a presidential election? No.

Would pursuing this matter have been an unwise use of resources? Of course not. Taxpayers entrust us with resources exactly so that we can pursue enforcement in important cases and ensure that no one is above the law. This dismissal of the allegations against Trump is arbitrary, capricious, outrageous and contrary to the law that Congress created the FEC to enforce.

It gets worse. The Republican commissioners’ grossly inadequate justification for dismissal is effectively insulated from review because of the last 13 words of their statement: “We voted to dismiss these matters as an exercise of our prosecutorial discretion.” The courts have turned “prosecutorial discretion” into magic words that render any administrative decision invulnerable to appeal.

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“F.E.C. Drops Case Reviewing Trump Hush-Money Payments to Women”

NYT:

The Federal Election Commission said on Thursday that it had formally dropped a case looking into whether former President Donald J. Trump violated election law with a payment of $130,000 shortly before the 2016 election to a pornographic-film actress by his personal lawyer at the time, Michael D. Cohen.

The payment was never reported on Mr. Trump’s campaign filings. Mr. Cohen would go on to say that Mr. Trump had directed him to arrange payments to two women during the 2016 race, and would apologize for his involvement in a hush-money scandal. Mr. Cohen was sentenced to prison for breaking campaign finance laws, tax evasion and lying to Congress.

“It was my own weakness and a blind loyalty to this man that led me to choose a path of darkness over light,” Mr. Cohen said of Mr. Trump in court in 2018.

While Mr. Cohen has served time in prison, Mr. Trump has not faced legal consequences for the payment….

In December 2020, the F.E.C. issued an internal report from its Office of General Counsel on how to proceed in its review. The office said it had found “reason to believe” violations of campaign finance law were made “knowingly and willfully” by the Trump campaign.

But the election commission — split evenly between three Republicans and three Democratic-aligned commissioners — declined to proceed in a closed-door meeting in February. Two Republican commissioners voted to dismiss the case while two Democratic commissioners voted to move forward. There was one absence and one Republican recusal.

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“F.E.C. Asks Congress to Ban Prechecked Recurring Donation Boxes”

NYT:

The Federal Election Commission voted unanimously on Thursday to recommend that Congress ban political campaigns from guiding donors by default into recurring contributions through prechecked boxes, a month after a New York Times investigation showed that former President Donald J. Trump’s political operation had steered huge numbers of unwitting supporters into repeated donations through that tactic.

The bipartisan commission, which serves as the nation’s top election watchdog agency, is divided evenly between three Democratic-aligned commissioners and three Republicans, a composition that often leads to stalemate. But commissioners of both parties, including three Republicans appointed by Mr. Trump, came together on Thursday to ask Congress to strengthen campaign finance law to protect online donors.

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FEC Republican Commissioners Pave Way for More Foreign Corporate Influence in U.S. Campaigns

Free Speech for People:

The Federal Election Commission divided 3-3 on Free Speech For People’s 2017 complaint against the oil company Citgo, its Venezuelan state-owned parent company, and President Trump’s 2017 inaugural committee. The FEC’s general counsel agreed with Free Speech For People that the companies and the inaugural committee violated a federal ban on donations to inaugural committees by foreign entities. However, the FEC divided along party lines and the case was closed. …

The First General Counsel’s Report noted that all evidence suggested that Citgo’s leadership was selected by PDVSA, and in at least one case, by the president of Venezuela himself:

CITGO’s Response does not … rebut the Complaint’s allegation that CITGO’s Board of Directors at the time of the donation consisted entirely of foreign nationals. According to publicly available information, much of which comes from CITGO itself, CITGO’s Board of Directors at the time of the $500,000 donation consisted of … nationals of Venezuela…. Additionally, at least some of the CITGO board members at the time of the donation apparently held concurrent positions within PDVSA, the foreign parent that the Venezuelan government owns. … Although CITGO Holding, Inc., and the CITGO Board of Directors were purportedly responsible for appointing CITGO’s board members and executive officers, respectively, the Venezuelan government apparently had considerable influence over key personnel decisions at CITGO. For example, Venezuela’s President on November 22, 2017, reportedly named Asdrúbal Chávez, a cousin of former President Hugo Chávez, as the new president of CITGO in an event broadcast on state television.

The professional staff also noted that, since 1978, the FEC had long interpreted foreign-national ban language nearly identical to that in the inaugural committee regulation as prohibiting foreign national participation in the decision-making process. 

Since the unrefuted facts indicates that the entire board of CEO consisted of Venezuelan appointees and Citgo management was closely intertwined with the Venezuelan government, the staff concluded:

These circumstances, coupled with the considerable control that the Venezuelan government apparently had in CITGO operations and in the absence of any explanation by Respondents, raise a sufficient inference that foreign nationals on CITGO’s board and in its holding companies may have indirectly made the donation to the Inaugural Committee, which the regulation prohibits. Accordingly, we recommend that the Commission find reason to believe that Petroléos de Venezuela, S.A, CITGO Petroleum Corporation, and CITGO Holding, Inc., violated 11 C.F.R. § 110.20(j) by making a foreign national donation….

Commissioners Broussard, Walther, and Weintraub voted in favor of finding reason to believe that Citgo and PDVSA had made an illegal foreign donation, as the FEC’s nonpolitical career staff had recommended. Commissioners Cooksey, Dickerson, and Trainor voted against. The 3-3 deadlock prevented the action from moving forward. (The decision was not lightly received; after the action was blocked, two commissioners dissented from closing the file.) 

Commissioners Cooksey, Dickerson, and Trainor provided a written statement explaining their vote against enforcement. These commissioners argued that the FEC’s professional career staff misunderstood the law. Rather, they argued that, as long as PDVSA didn’t provide or reimburse the funds used for the donation, then the donation came from Citgo, a legally distinct entity. Furthermore, they opined that even if the Venezuelan PDVSA-appointed directors of Citgo participated in Citgo’s decision to make the donation, it would not constitute a foreign national “indirectly” making a donation within the meaning of the FEC regulation. 

While the other three commissioners disagreed with this analysis, the Commission can only enforce by majority vote, so a 3-3 split vote means that enforcement is blocked.

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“Democrats Aim to Revive a Campaign Finance Watchdog”

NYT:

Yet as the Senate prepares to begin work on a sweeping voting rights and elections overhaul bill, the two parties are bitterly divided over a proposal to restructure the enforcer of campaign finance rules, a central plank of the legislation. It is a significant reason Republicans oppose the measure so strongly.

The bill would reconfigure the panel from being evenly divided to having a 3-to-2 split, making stalemates far less likely, giving more power to its presidentially appointed chairman and building in stronger enforcement mechanisms.

Senator Mitch McConnell, Republican of Kentucky and the minority leader who has long fought against campaign finance restrictions — including by steering like-minded allies onto the commission — placed revamping the panel at the top of his list of examples of Democratic overreach in a measure he said was stuffed with outlandish ideas.

“First, I would list turning the F.E.C. from the judge into a prosecutor and giving the party of the president the opportunity to harass opponents,” said Mr. McConnell when asked to itemize his objections to the bill. “Completely outrageous.”

He and fellow Republicans argue that the commission’s overhaul would set off a series of back-and-forth partisan campaign investigations each time power shifted in Washington and the makeup of the panel changed.

“I think that is a mistake,” said Senator Richard C. Shelby, Republican of Alabama and a senior member of the Rules Committee that is scheduled to take up the elections and campaign bill in May. “One group will go after the other. With Republicans in control, they will go after the Democrats, and vice versa.”

He also questioned whether it was necessarily bad that the commission often could not agree on enforcement measures.

“Maybe they don’t need to,” he said. “Most things are disclosed, and you all are sure watching,” he said of the news media.

Democrats suspect that Mr. Shelby nailed the true reason that Republicans oppose the overhaul — that they prefer the tightly leashed watchdog that exists now over an empowered election commission that would rigorously carry out the law.

“Republicans want to keep it broken because they want people to be able to skirt the law with impunity,” said Senator Chris Van Hollen, Democrat of Maryland and a proponent of the changes. “The problem is that it is so broken, people have accepted it as the status quo. But campaign finance laws are meaningless if they are not enforceable.”

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“Senate confirms three FEC commissioners, restoring full slate for the first time since 2017”

WaPo:

The Senate on Wednesday confirmed three members to the Federal Election Commission, restoring the agency’s ability to conduct official business after months without a voting quorum and bringing the panel to its full slate of six members for the first time since 2017.

The confirmations come at the conclusion of the 2020 elections, which are projected to cost $14 billion and be the most expensive. The commission, which regulates and enforces federal campaign finance laws, had a voting quorum for just 29 days in the summer. It has not been able to conduct official business for the majority of the 2019-2020 election cycle, amid mounting backlogs of complaints and advisory opinion requests.

The new commissioners are Shana M. Broussard, current FEC attorney and the first Black commissioner; Sean J. Cooksey, general counsel for GOP Sen. Josh Hawley of Missouri and the youngest person to become a commissioner; and Allen Dickerson, legal director of the Institute for Free Speech, which opposes campaign finance restrictions. Broussard is a Democrat, and Cooksey and Dickerson are Republicans.

With their confirmations, the commission is again equally divided ideologically, which could resume the FEC’s practice of often deadlocking on alleged election violations. Federal law requires more than one party to be represented on the FEC.

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“The Nation’s Top Election Official Has Overdosed on the Trump Kool-Aid”

Lachlan Markay for the Daily Beast:

The good news is that the nation’s top campaign finance watchdog may soon be functional again. The bad news is that its current chairman has gone off the rails.

Trey Trainor may not be a household name. But as head of the Federal Election Commission, he has oversight of the campaign finance system that underpins federal elections. And in recent days, he’s been floating baseless election fraud conspiracy theories sourced entirely to a Trump attorney who believes the Fed is out to tank the American economy in order to enrich George Soros.

“I do believe that there is voter fraud taking place” in key states in the 2020 presidential election, Trainor told the conservative outlet Newsmax last week. The allegations were quickly seized upon by the president’s allies, including his son Donald Trump Jr., in their efforts to overturn the results of an election that experts both in and out of the federal government have said was remarkably secure and reliable.

Such proclamations carry a bit of extra weight when coming from the chair of the FEC. But Trainor’s sole source for it appears to be the word of Sidney Powell, a right-wing attorney who’s representing the Trump campaign in its efforts to block the certification of President-elect Joe Biden’s election victory.

“If she says there is rampant voter fraud… I believe her,” Trainor wrote of Powell, who has alleged that U.S. monetary policy is in hock to Soros and amplified“QAnon” conspiracy theorists.

Campaign finance experts recoiled at Trainor’s apparent embrace of the dubious allegations. “My biggest concern with Commissioner Trainor is his partisanship, and to the extent that overlaps with the conspiracy theorizing about election fraud, that’s a concern,” said Paul Seamus Ryan, the vice president of litigation with the group Common Cause, in an interview on Tuesday.

But the comments were just the latest in a recent shift at the FEC, spearheaded by both Republican and Democratic commissioners, to expand its role to some degree beyond the commission’s traditional campaign finance enforcement mandate. Fueled by concerns over foreign election interference in 2016 and spurious voter fraud charges this year, the nation’s chief political money enforcer appears to be eyeing an expanded policy purview, even as the commission he served on has been prevented by internal dysfunction and a critical staff shortage from carrying out its most basic functions.

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