Category Archives: federal election commission

“With a Democrat’s Help, the F.E.C. Goes From Deadlock to Deregulation”

campaign finance, federal election commission, political polarization

There’s a lot to drive discussion in this NYT piece on the FEC and Commissioner Lindenbaum’s role in a recent series of votes.  (Disclosure: I was serving at the White House when Commissioner Lindenbaum was nominated.)

I haven’t had the chance to dig into the substance of the specific rulings highlighted in the piece, including the recent advisory opinions (and including the important AO on canvassing and coordination that Ned and Rick flagged a little over a month ago).  I tend to think that some of the critique of commission action and inaction is sometimes directed at the desire to change laws or regs rather than working with what the regs actually say, and I’d want to actually read the underlying legal materials before opining on the policy decisions.

The piece does highlight that “Ms. Lindenbaum’s work in the trenches of campaigns, where lawyers sort through the law’s gray areas to decide what can and cannot be done, that her supporters and detractors alike say has informed her thinking.”  And I agree with the profoundly informative nature of that experience.

The piece also highlights Marc Elias’s role in the series of recent votes: “One surprising thread through many of Ms. Lindenbaum’s most consequential decisions is that they were sought by Mr. Elias, who has become the face of voting-rights litigation on the left.”  But I think that thread may only be surprising if you’re the type to anoint someone as the “face of voting-rights litigation” for a diverse and hazily defined coalition of millions of voters with a whole lot of distinct voting-rights interests.  (The unrelenting focus of American political reporting on branding star personalities is not the only way to understand policy decisions or present narrative.)  Lawyers bring matters forward for a lot of reasons, including the interests of their clients and/or funders.

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CNN admits it’s using different debate criteria for Biden, Trump than Kennedy

federal election commission

Joe Biden and Donald Trump are two of the least popular presidential candidates of all time. It’s no surprise that an independent presidential candidate (with a famous last name) is getting outsized attention among prospective voters. But there appears to be a strong effort to box Robert F. Kennedy, Jr. from the debate stage.

As I highlighted last month right when CNN made its announcement, CNN’s “objective” criteria (the term used in federal law) to stage a debate included the requirement that “a candidate’s name must appear on a sufficient number of state ballots to reach the 270 electoral vote threshold to win the presidency prior to the eligibility deadline.” As I noted, that would exclude both Biden and Trump, as neither is the party’s nominee nor has any paperwork been filed on behalf of either candidate in any state.

Recent coverage wondering if Kennedy might make the debate stage occasionally highlights this disparity, as Kennedy’s ballot access remains fairly successful but far from certain. A New York Times piece today notes (with a somewhat playful headline, “The Big Hurdle Between R.F.K. Jr. and the Debate Stage (It’s Not a Poll)”):

The Kennedy campaign has complained that the ballot access requirement to participate had set an unfair double standard for Mr. Kennedy, asserting that neither Mr. Biden nor Mr. Trump would qualify under those rules because they have not been officially nominated by their respective parties. Amaryllis Fox, Mr. Kennedy’s campaign manager, has said that “the 270 threshold is nonsensical.”

In a statement, CNN rejected that framing, saying that “as the presumptive nominees of their parties both Biden and Trump will satisfy” the ballot access requirement, adding that “as an independent candidate, under applicable laws R.F.K. Jr. does not.”

From another statement by CNN:

The law in virtually every state provides that the nominee of a state-recognized political party will be allowed ballot access without petitioning,” a CNN spokesperson said in a statement Wednesday. “As the presumptive nominees of their parties both Biden and Trump will satisfy this requirement. As an independent candidate, under applicable laws RFK Jr. does not. The mere application for ballot access does not guarantee that he will appear on the ballot in any state.”

This is an overt acknowledgement from CNN that it is not following its promulgated “objective” criteria. Instead, for Biden and Trump, it is altering the criteria, to allow a “presumptive nominee” (not a candidate), and to say that if these individuals “will satisfy” the requirement they qualify (not a present qualification). It’s a reason (as my earlier post points out) why the Commission on Presidential Debates scheduled its debates when it did and set the criteria as it did.

Kennedy has filed an FEC complaint to this effect. But it remains to be seen how the FEC will respond.

(It’s worth noting there is a polling requirement that Kennedy must separately meet. He has met 3 of the 4 polling requirements and might be able to meet the last one in the next several days.)

It’s no surprise that the major party candidates do not want to share the stage with a third candidate. Jimmy Carter didn’t want John Anderson on stage. After Ross Perot appeared on the debate stage in 1992, the CPD raised the polling threshold to appear from 5% to 15%. Biden and Trump would be happy to debate one another without Kennedy, I’m sure. And there are criteria that could have been designed to increase the likelihood of that happening, without this sort of error of making a standard that the staging network has to modify for two of the candidates.

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Truly Bizarre Story in Mediaite About Texas Voting Technology Making It Possible to Figure Out How People Voted, and FEC Commissioner Trey Trainor Taunting Republican Leader for Voting for DeSantis Rather than Trump

chicanery, federal election commission, voting technology

Mediaite:

The eyes of Texas were upon the ballots cast by several high-profile Texas politicians on Wednesday, after documents were leaked related to a stunning lawsuit accusing state election officials of failing to properly protect ballot secrecy. The leak included the purported ballot for the chairman of the Republican Party of Texas (RPT) — catching him in a lie about how he voted in the presidential primary.

The 77-page complaint was filed by an elections security researcher who lives in Williamson County, Texas and four other Texas voters, two of whom also live in Williamson County, one from Bell County, and one from Llano County. Texas Secretary of State Jane Nelson, Director of the Division of Elections Christina Adkins, and the county election administrators for Williamson, Bell, and Llano Counties are named as defendants, accused of “willful and systematic disregard of election laws” that put at risk the secrecy of potentially millions of ballots cast by Texans in recent elections.

The complaint describes the plaintiffs as all “consistent voters” who “voted in the most recent Texas elections in November 2023 and March 2024,” but either do not qualify to vote by mail under Texas law or prefer to vote in person….

The actual method used to cross-reference the unique identifier ballot numbers with the voter names and the results from individual ballots were originally filed in redacted form with the complaint (a redacted presentation by a Texas A&M University computer scientist regarding the methodology available for download here), according to our source. Rumors have been flying around Texas political circles in recent weeks about the method mentioned in the lawsuit and whether or not Texans’ ballots were really at risk of exposure.

And then on Wednesday, Texas-based website Current Revolt published documents that were produced using the methodology deployed in the investigation for the lawsuit – specifically, Rinaldi’s ballot.

Rinaldi voted in person in Dallas County for the Texas GOP presidential primary in March. He had publicly endorsed former President Donald Trump, said he voted for him, and even continued to insist earlier this week that he had cast his vote for Trump.

That’s not what the ballot and cast vote record images (below) show. Instead, Rinaldi allegedly voted for Florida Gov. Ron DeSantis (R), whose campaign collapsed in an embarrassing sputter in Iowa months earlier.

Why is FEC Commissioner Trainer even asking someone if they will be “in a #MAGA hat at” the Republican convention?

I expect we are going to hear much more about both aspects of the story, especially the potential loss of a secret ballot in Texas. If this pans out, just wow.

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“Trump-nominated FEC leader: let political donors hide their identities”

campaign finance, federal election commission

Raw Story:

A Donald Trump-nominated Federal Election Commission leader wants to make it easier for political donors to hide their identities — a major impediment to post-Watergate interpretations of political transparency that allow anyone to see where politicians are getting their money.

The proposed directive, titled “Requests to Withhold, Redact, or Modify Identifying Information,” was submitted today by Commissioner Allen J. Dickerson for possible consideration at the commission’s public May 16 meeting. Raw Story obtained a copy.

Dickerson’s memorandum says that the Federal Election Campaign Act’s disclosure requirements “are not absolute” and subject to exceptions.

“Where a person or group can show ‘a reasonable probability’ that compelled disclosure ‘will subject them to threats, harassment, or reprisals from either Government officials or private parties,’ they must be excused from disclosing the information that will put them at risk,“ Dickerson’s memorandum says.

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“Republicans Are Making ‘Dark Money’ Even Darker for 2024”

campaign finance, federal election commission

Roger Sollenberger for The Daily Beast:

For years, dark money groups have enjoyed certain advantages that offer donors anonymity—putting the proverbial “dark” in “dark money.”

But late last month, one small outside group quietly told election law regulators to shove off when watchdogs demanded to see the group’s donors, a move that legal experts say could signal a profound shift in campaign finance disclosure laws, making dark money even darker just in time for the 2024 election.

The group, a left-leaning climate change advocacy organization called “Protect Our Winters Action Fund,” was standing its ground after a notice from the Federal Election Commission flagged the group’s failure to disclose contributors, as the law requires.

In response, POWAF—a 501(c)(4) nonprofit—simply declined to disclose its donors. And as a justification, the group cited a policy statement from the FEC’s three Republican commissioners released in June 2022, signaling they would not enforce “dark money” disclosure rules as courts had previously decided.

That policy statement does not carry the force of law. And legal experts told The Daily Beast that the commissioners’ memo—written in response to two federal court rulings that had interpreted the law the opposite way—undercuts judicial decisions favoring transparency.

Instead, these experts said, GOP commissioners are apparently signaling they will unilaterally refuse to enforce the law as courts have defined it. With all FEC enforcement decisions requiring support from four of the six commissioners, this three-commissioner Republican contingent could block any action.

While the mechanisms involved may seem highly technical and obscure, the potential consequences are broad and easy to understand.

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Republican FEC Commissioners Block Investigation into Trump Campaign for 59th Time (29th Rejecting Staff Recommendations)

federal election commission

From Commissioner Weintraub:

Commissioners will continue to exercise prosecutorial discretion – the judicially unreviewable superpower granted to them by the D.C. Circuit Court of Appeals –unless and until the Court reconsiders its rulings in the Commission on Hope, Growth & Opportunity and New Models cases.

Until then, commissioners will be free to determine that Commission resources “would be best spent elsewhere” – although with only seven cases currently under investigation and the enforcement division’s investigatory authority newly hamstrung,16 it’s not clear where. And for those keeping count, the tally is now 59 times the Commission has been presented with allegations that Mr. Trump or his committees violated the FECA, 29 times the Commission’s nonpartisan professional staff recommended that we take some steps to enforce the law, and (checks notes) still zero times a Republican commissioner has voted to approve any recommendation to enforce the law against Mr. Trump

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“The FEC, Still Failing to Enforce Campaign Laws, Heads to Capitol Hill”

campaign finance, federal election commission

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. 

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“A Trump Appointee is Trying to Gut the FEC’s Ability to Investigate Campaign Finance Crimes”

federal election commission

The Intercept:

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.

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The Federal Role in U.S. Elections, in One Picture

Department of Justice, election administration, Election Assistance Commission, federal election commission

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.”

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Federal Lawsuit against DeSantis and Florida Election Officials over Rollout of Felon Voting Rights Restoration

federal election commission, felon voting, Uncategorized

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.

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