Past due notice
Watchdog groups are also applauding the hearing. These transparency advocates have been frustrated for years, as the FEC’s six-person bipartisan panel has frequently failed to attain the necessary four votes to act on enforcement matters—even in major cases where the agency’s general counsel recommends action.
Brendan Fischer, deputy executive director at Documented, told The Daily Beast that the agency has walled itself off from oversight, and congressional hearings are “one of the few remaining ways to hold the FEC accountable to its mission of upholding and enforcing the laws governing money in our political system.”
“The FEC is largely shielded from judicial oversight, with commissioners hiding behind ‘prosecutorial discretion’ to insulate their decisions from review by courts,” Fischer told The Daily Beast. He added that this sense of immunity appears to extend to the commissioners themselves, with GOP commissioner Trey Trainor “recently blowing off an investigation by the FEC’s ethics watchdog without consequence,” referring to Trainor’s refusal to cooperate with an internal ethics investigation into his appearance at a political event.
Let’s go to the videotape
Ahead of the hearing, HAC Democrats asked the FEC to provide data about its enforcement decisions. Most unnerving for transparency advocates is the FEC’s failure to follow the recommendations of its own general counsel.
For instance, the OGC has recommended action in 59 cases alleging unlawful super PAC coordination. The commissioners did so in just seven of those cases. And in cases involving potential committee status violations, the FEC acted on five of OGC’s two dozen recommendations.
The Democrats are also disappointed in the FEC’s limited ability to identify and regulate foreign money filtering into elections. And on that issue, the FEC has taken up the OGC’s recommendation less than half the time, the data shows. Almost every one of those decisions not to act—11 times out of 13—were related to former President Donald Trump.
Last year, The Daily Beast reported that Trump has posted a conspicuously remarkable undefeated record against campaign finance allegations—43 and 0. The HAC Democrats also asked for FEC data on Trump investigations, and found that the numbers had increased in the meantime, with Trump surviving all 56 matters since he declared his candidacy in June 2015.
Of those 56 cases, OGC recommended that the commissioners find reason to believe a violation had occurred in 26 of them. The GOP commissioners voted down all 26.
Deadlock
Government transparency groups know this data all too well, having filed years of complaints that have been validated by the OGC only to be shot down by a deadlocked commission.
Saurav Ghosh, director of federal reform for nonpartisan watchdog Campaign Legal Center, told The Daily Beast that the FEC’s inaction has had lasting negative effects on the democratic process, and public accountability is “long overdue.”
“For well over a decade now, the FEC has failed to enforce the laws that govern our federal elections, and the result has been a drastic increase in political spending, commonsense laws being broken without recourse, less transparency for American voters and more influence for wealthy special interests,” Ghosh said, adding that the FEC’s “ideological split…has gone on far too long.”
Splitsville
Asked for comment, FEC Chair Dara Lindenbaum and Vice Chair Sean Cooksey—a Democrat and a Republican—provided a statement claiming that the commissioners reach bipartisan agreement in “nearly 90 percent” of enforcement matters.
“As Commissioners, we do our level best to work together and to enforce the law fairly and consistently. Without commenting on any specific case, Commissioners take each enforcement matter on its merits, and we reach bipartisan agreement in nearly 90 percent of them,” the statement said, without providing a timeframe or other context for that statistic. “Any narrative that the Commission is mired in deadlock or that its bipartisan structure prevents it from enforcing the law is misinformed.”
But “partisanship” can be sliced a number of ways. The FEC is required to have six commissioners, three Democratic appointees, three Republican, with four votes required for enforcement action. For a long time, one of the “Democrats” was an independent who typically voted with the Dems. And for more than a year under Trump, the agency didn’t have enough commissioners to attain a quorum, meaning enforcement matters couldn’t even be considered.
Now the agency is back to its 3-3 partisan balance, but the new composition has also ruffled watchdogs.
“Certain commissioners simply do not appear to support the mission of the agency they were appointed to lead,” Ghosh said.
He appears to be referring at least in part to Lindenbaum, who upon her swearing-in has sided against her Democratic colleagues Ellen Weintraub and Shana Broussard in a number of enforcement matters. Most specifically, Lindenbaum—who unlike Weintraub and Broussard came to the FEC from a private political firm—has voted with the three GOP commissioners to close deadlocked matters, robbing watchdog groups of a judicial end-around they had devised to bring unresolved investigations to federal court.
Ann Ravel, a Democrat who left the commission in early 2017, also disagreed with the commissioners’ statement, telling The Daily Beast that the FEC continues to fail in “matters of great importance” to democracy.
“The FEC, unfortunately, continues to rarely have the needed four votes to enforce the law in cases that have deleterious impact on democracy,” Ravel said. “Money in politics is one of the biggest ways that corruption in the political process undermines democracy. The FEC has failed to enforce the law in matters of great importance to the electoral processes.”
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