The Federal Election Commission is sowing “chaos.” So say three of the agency’s six commissioners.
In a May 13 statement, Republican Commissioners Allen Dickerson, Sean Cooksey, and Trey Trainor noted that “lawsuits have been filed against the Commission for ‘failing to act’ even though the FEC has acted.” The problem stems from the Democratic commissioners’ refusal to administratively close out complaints that the Commission deemed not worthy of investigating.
The failure to publicly disclose that the complaint has been dismissed has “affirmatively misled” those charged with irregularities into thinking that the complaints against them are still active.
The three Democratic commissioners have also refused to authorize the FEC to defend itself against lawsuits arising from their failure to close out cases that won’t be pursued. This means the FEC is misleading federal judges by not informing them that the agency has already reviewed and dismissed the cases in question.
Put simply, the Democratic commissioners are violating federal law. By refusing to disclose that meritless complaints have been dismissed, they are misleading the public and the courts and aiding and abetting their allies’ attempts to smear their political opponents. As their fellow commissioners noted, this cynical abuse of power “exercises a corrosive influence on” the commission and “undermines fundamental fairness” and “foundational notions of due process” for candidates, political parties, and independent organizations who participate in the political process.
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First, some background. The FEC is an independent federal agency charged with civil enforcement of the Federal Election Campaign Act, the federal law that governs how all congressional and presidential campaigns raise and spend funds. It is run by six commissioners nominated by the president and confirmed by the Senate.
By law, no three commissioners can be affiliated with the same political party. To further ensure that the FEC does not engage in partisan law enforcement activity, the law requires the votes of four commissioners for the agency to take any action. This ensures bipartisanship in enforcement and is supposed to prevent one party from controlling the FEC and using it to target the candidates and supporters of the other political party for partisan purposes.
Now, however, the three Democratic commissioners—Steven Walther, Shana Broussard, and Ellen Weintraub—are breaking the law, giving the public and the courts the false impression that certain enforcement cases remain open when they have, in fact, been terminated.
Why would they do this? To facilitate private lawsuits filed by their political friends against their political opposition.
Here’s how they are doing it. Once the FEC receives a complaint that someone or some organization has violated federal campaign laws, the target of the complaint is asked to file a response with the FEC. The commissioners then review the complaint and the response to determine if there are sufficient grounds to believe that a violation has occurred and that a formal investigation should be initiated.
Unless at least four commissioners vote to open an investigation, the matter ends there. The Commission has decided there is no merit to the complaint.
In the past, when that occurred, the Commission would then take a quick, purely ministerial vote to administratively close the file. This, in turn, triggered another provision of the law.
While an FEC complaint is under active consideration and investigation, it must remain confidential. However, once a matter is closed—e.g., when a majority of commissioners does not believe there is even sufficient evidence to open an investigation—the general counsel of the FEC must notify all the parties involved and make the documents public within 30 days. The commissioners who decided there was no violation of the law are also required to provide a “Statement of Reasons” explaining their decision.
This gives the targets of meritless complaints closure. If whoever filed the complaint believes the FEC acted contrary to law by refusing to open an investigation, the public disclosure allows them to file suit against the agency. Those “Statements of Reason” are crucial to a court being able to determine whether the FEC acted contrary to law.
However, more than a year ago, Commissioners Walther, Broussard, and Weintraub began refusing to administratively close a file after a final vote determined there were insufficient votes to open an investigation. This prevented the parties, the public, and the courts from being notified that the FEC had reviewed the complaint and determined there wasn’t enough evidence to justify an investigation.
While these cases remain in FEC limbo, partisan lawfare operations like the Campaign Legal Center are able to sue the accused, even though the Commission has already decided no violation of the law occurred. Liberal media and the organizations filing the dubious complaints may also continue to publicly defame and malign the targeted organizations by claiming they violated federal law.
This perversion of the system has hit close to home for me. I work for the Heritage Foundation, a 501(c)(3) educational organization that does not lobby or support candidates. But we have a related organization, Heritage Action for America, that does get involved in advocating for conservative policies.
The Campaign Legal Center filed a complaint against Heritage Action. The FEC subsequently concluded, more than a year ago, it had no merit. But the three Democratic-appointed commissioners refused to approve closing the file and making the decision public. Heritage Action had to use the Freedom of Information Act to get a copy of the recorded vote documenting that the original complaint was dismissed.
In the meantime, however, the Campaign Legal Center got permission from a federal judge to file a lawsuit directly against Heritage Action. The FEC never notified the judge that it had already acted and decided no violation of the law had occurred.
According to the Republican commissioners, seven other organizations are in the same fix, with complaints against them dismissed by the FEC but where the three Democratic commissioners refuse to administratively close the files and have “essentially ignored them.”
As the Republican commissioners note, their colleagues are “weaponizing a nominal housekeeping act” to “create the public impression” that the FEC is not doing its job, “even though we have actually finished it.” It also allows liberal advocacy groups to generate frivolous, time-consuming, expensive lawsuits against conservative organizations like Heritage Action.
Heritage Action is now suing the FEC over the unethical behavior of its Democratic commissioners. But others should act as well. The federal judges who are being misled by the agency’s nondisclosures should force the FEC to disclose all records pertaining to complaints and other matters that are the subjects of the lawsuits filed in their courts.
And there should be consequences for the three commissioners (two of whom served with me when I was on the FEC in 2006 and 2007) who are refusing to abide by their oath of office to uphold the law.
A senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies, Hans von Spakovsky also manages the think tank’s Election Law Reform Initiative.