For years, critics have argued that the Federal Election Commission has effectively broken up. Now MAGA-land is going to court to make sure it stays that way.
The FEC is charged with politically enforcing campaign finance laws, but in recent years Republican commissioners have chosen not to take action in a number of cases — even when the agency’s own lawyers have found reason to believe the laws were broken . The continued gridlock has led to accusations that the service is broken and neglecting his duty.
Recently, however, Democratic commissioners have found a way around the impasse, opening a path through the courts if Republicans fail to act. But it’s a long process, and now three committees with ties to the Trump world — the campaign for Sen. Josh Hawley (R-MO), the National Rifle Association and a pro-Trump outside group called the 45Committee — are fighting back with their own. lawsuits in hopes of thwarting tippers.
Democratic commissioner Ellen Weintraub told the Daily Beast that those Republicans are “absolutely happy” with the status quo.
“Unfortunately, there are some people who want to see it stay broken,” Weintraub said. “They are perfectly happy for us to fail to act. This is good for them. But they can’t control all the results.”
All three committees that sued the FEC were charged with campaign finance violations, and all three escaped action with deadlocked votes.
The 45Committee, a nonprofit organization, was accused by the Campaign Legal Center in 2018 of improperly spending tens of millions of dollars to support candidates during the 2016 election, including Donald Trump. Three years later, the FEC deadlocked on an executive order and CLC sued the 45Committee directly in DC federal court this April.
The NRA and the Hawley campaign are involved in a separate action involving an alleged illegal multi-million dollar coordination scheme. They also benefited from the standstill rule and now face a federal suit, also in the D.C. Circuit, by CLC and the Giffords gun control group.
(GOP commissioner Sean Cooksey worked as general counsel for Hawley’s Senate office.)
Stuart McPhail, who has litigated various campaign finance cases as a senior counsel at Citizens for Responsibility and Ethics in Washington, called the Republican disqualification “technical.”
“The goal is to prevent enforcement and stop our lawsuits from going forward,” McPhail told The Daily Beast. “But it just fuels public cynicism when you don’t see the law being enforced with these crooks.”
McPhail deplored what he sees as partisanship, noting that the Trump campaign has somehow survived dozens of cases without a single Republican commissioner voting to take action, even once.
“If GOP commissioners have unilateral power to kill decisions and are immune from all political and legal checks on their authority, that undermines public faith in the law,” McPhail said.
But there is legal scrutiny, and the MAGA lawsuits are trying to block it.
When Congress created the FEC, they purposely gave the agency six commissioners and required that no party hold a majority. But Congress knew this arrangement would occasionally lead to deadlock, so they built what Weintraub calls “an escape hatch” into the law.
“If the commission doesn’t act, people can sue us directly and seek a private right of action in federal court,” he said.
They do, thanks to a loophole that Republicans are desperate to close. Because while the FEC needs a majority to enforce the law, it also needs four votes to close these cases.
“One day, Democrats just said, ‘We’re not going to vote to close these cases,'” McPhail said. “This move allows plaintiffs to take the FEC to court for failure to act, and then the court can authorize you to bypass the FEC and file your own lawsuit directly against the defendant.”
Watchdog groups, including CREW, have begun to go down that route, but it’s a long road and none of the lawsuits have made it to judgment.
The Republican commissioners they say the strategy has created “chaos” and caused “an escalating breakdown of institutional norms.”
“Claims have been filed against the Commission for ‘failure to act’, even though we have in fact acted,” they wrote in statement this May, arguing that Democrats have “misled respondents” by refusing to close cases where the agency has been deadlocked.
Weintraub called this “nonsense.”
“It’s a handful of cases – eight this year. It’s certainly not ‘chaos,’” he said. “And the norms collapsed years ago. For most of the agency’s history, commissioners have worked hard to find four votes for different outcomes. Since 2008 alone we have had an increasing number of split votes, and we see them again and again, not on small issues, but on big, important issues. That was the breakdown of the rules.”
Republican commissioners did not respond to a request for comment for this article. The NRA and Hawley’s campaign did not respond to emailed questions. A representative of Commission 45 could not be reached.
The three new lawsuits are an attempt to “fight back” against the court’s strategy, said Brett Kappel, a campaign finance law specialist at Harmon Curran.
The lawsuits use the Freedom of Information Act to demand the FEC turn over its voting records, which are kept confidential until a case is closed. MAGA groups hope to show that Democratic commissioners acted “arbitrarily and capriciously,” like the 45th Committee complaint he puts it, in an attempt to “force [them] in a civil trial”.
“They’re trying to get evidence of internal communications between commissioners about whether they ever made a decision to close one of these matters,” Capel said. “But they are trying to split hairs and I don’t think they will be successful with this tactical maneuver.”
That’s because voting records have two layers of protection: FOIA exempts internal deliberative communications from public release, and the FEC has its own strict confidentiality requirements on top of that.
“It is actually a criminal offense for FEC employees to violate confidentiality rules,” Kappel said. “And the D.C. Circuit has given the requirements a broad interpretation in prior litigation. The lawsuits also challenge the agency’s institutional prerogatives – if they succeed, then everyone could do this.”
Capel also pointed out that the NRA’s lawsuit against the FEC was referred to the same judge hearing the Giffords’ lawsuit against the NRA. “I don’t think judges will have any sympathy for trying to circumvent the discovery rules,” he said.
Weintraub said there are several reasons the FEC might not dismiss a case, such as if the Justice Department asks them to stand down during a criminal investigation.
“They’re trying to get information on open enforcement matters,” he said, noting that closed files are available on the FEC’s website.
“But it’s not there because we haven’t dismissed those cases and we’re not sharing information from open case files. No agency does,” he said. “That’s not how business is done. There’s a process and it’s not over until it’s over.”