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


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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