Donald Trump may have been impeached twice, and he’s taken some lumps in court, but in one legal arena he is hands-down the undefeated reigning champ: campaign finance law.
It’s not even close.
According to a review of filings with the Federal Election Commission, the agency with jurisdiction over campaign finance law, Trump has over the last six years posted a 43-0 record in cases referred for possible violations.
And the single reason that the FEC has never acted is because none of the agency’s three Republican commissioners have ever voted against Trump.
For years, watchdog groups, Democratic officials, and campaign finance reform advocates have criticized the notoriously deadlocked agency, whose six appointed commissioners are split evenly along party lines. (In recent years, the agency has had one independent who typically votes with the Democrats.) These critics allege that the Republican commissioners have weaponized the even partisan split to jam up decisions, rendering the FEC toothless and “broken.”
Other observers contest that the Republicans are merely adhering to traditional conservative ideology, with equal-opportunity inaction as a way to minimize regulatory interference.
But the Trump data shines a new light on those decisions in a critical way—in the vast majority of these cases, the FEC’s own internal nonpartisan attorneys found reason to believe that violations occurred.
Of course, anyone can bring a complaint to the FEC. You don’t have to know the ins and outs of campaign finance law, and you don’t have to have any evidence. You can claim that the Trump campaign stole money from you when it was actually a donation from someone who has the same name, or allege that a Trump campaign Google ad is actually a violation of federal law, because you had searched “donate Joe Biden.” The agency’s attorneys will actually look into it.
But setting aside the 15 Trump complaints that appear frivolous, petty or unfounded, 28 legitimate grievances remain—most of them filed by attorneys who have years of experience with campaign finance law.
Of those 28 complaints, the internal nonpartisan Office of General Counsel found reason to believe that campaign finance violations had occurred in 22 of them. In every instance, the Republican commissioners voted to block action.
Notably, the three Republican commissioners are Trump-appointed. But Trump also appointed three Supreme Court justices, and they have ruled against his interest, sometimes in surprising ways.
The Daily Beast presented this data to a number of watchdog groups, elected officials, and campaign finance specialists, and the response was nearly unanimous.
“That list is appalling,” said former Democratic commissioner Ann Ravel. “You have to have an agency that is willing to enforce the law. If people know that it’s not going to be enforced— and campaign lawyers know that—then they can act flagrantly, because they are assured of a friendly outcome.”
Jordan Libowitz, communications director at Citizens for Responsibility and Ethics in Washington, D.C., said the agency “just doesn’t want to enforce the law.”
“Forty is kind of an incredible amount. Half a dozen were dismissed against Obama in two terms. Obviously Trump has had a significant amount more filed against him, but we’re now looking at an FEC that doesn’t want to do its job,” Libowitz said, adding quickly: “And by FEC here, I mean ‘Republican Commissioners.’”
The Office of General Counsel found “reason to believe” violations occurred in a number of high-profile cases involving the Trump campaign.
There was the Russian troll farm indicted as part of Special Counsel Robert Mueller’s Russia investigation for illegal foreign contributions to the campaign. And the agency’s head-scratching split decision not to act against the Trump campaign for the Stormy Daniels hush money payment—with the GOP commissioners reasoning that since Trump’s former attorney Michael Cohen had gone to prison for the crime, the case was already a matter of public record.
It was “not the best use of agency resources,” they wrote, to hold the Trump campaign responsible for its own role in the transaction.
Ravel said this “very broad, very vague” application of prosecutorial discretion was typical.
“Their reasoning about having too few resources or being too close to the statute of limitations—there isn’t a clear definition of what that means, and they’ve used that so broadly not to take any action, political or otherwise,” she said.
Add to that the fact that, thanks to GOP resignations, the FEC lacked a quorum to take any enforcement action between September 2019 and December 2020. Those resignations ate up critical time for many Trump cases, running out the clock on the statute of limitations, and contributed to a massive backlog that choked the agency.
There’s also the case of the “catch-and-kill” payment to silence Karen McDougal from divulging her affair with Trump ahead of the 2016 election. In that matter, all six commissioners agreed that the payment had been coordinated, but only three of them—the Democratic bloc—voted to hold Trump’s side of the transaction accountable.
Then there’s the case of the Trump Foundation’s impermissible campaign contribution, which was one factor in the New York Attorney General’s decision to shut the charity down in 2018. But when the NYAG referenced the matter to the FEC, the Republicans declined to take any action.
“It is cold comfort that the State of New York sent a clear message in this matter that it will not tolerate federal candidates abusing its charitable laws to promote their political campaigns,” Democratic commissioners Shanna Broussard and Ellen Weintraub wrote in their dissent.
There were also cases of impermissible coordination between the Trump campaign and a super PAC supporting him, as well as coordination between the 2016 campaign and shady foreign data firm Cambridge Analytica.
Paul S. Ryan, vice president of litigation at good government group Common Cause, was on the receiving end of a number of those decisions, and did not mince words.
“Trump is a walking playbook for how to violate campaign finance laws and get away with it,” Ryan told The Daily Beast, noting that several cases hit close to home, including the Daniels payment, “complaints related to his soft money group America First Policies, his involvement with now-disgraced Cambridge Analytica, his solicitation of foreign campaign assistance and more.”
Because his organization filed those complaints, he said, seeing Trump walk “really stings.”
Ryan added that Common Cause wasn’t alone, noting that the Trump campaign skated on complaints from the Campaign Legal Center, End Citizens United, Democracy 21 and other watchdogs.
Erin Chlopak, senior director of campaign finance at CLC, expressed dismay, but said the data wasn’t surprising.
“The FEC failing to enforce campaign finance laws in the face of obvious violation is nothing new. The Republican Commissioners continually take action to block enforcement,” Chlopak told The Daily Beast. “It is time for the FEC to do its job.”
One case serves as a prime example, when the Democratic commissioners voted to act against Trump and Hillary Clinton alike, who according to the OGC had both crossed the legal line with their 2016 megadonor networks. But the GOP commissioners also declined to go after Clinton, opening up a counterargument—that they are actually politically neutral.
Researcher and professor Michael Franz sought to assess the FEC’s deadlock in an article published last June in the Election Law Journal. He concluded that “the evidence supports the claim that partisan conflict has come to characterize Commission voting patterns, with deadlocks on Commission actions skyrocketing in recent years,” specifically after George W. Bush appointees came onto the agency—including Trump’s former campaign and White House counsel Don McGahn.
The divide, Franz wrote, “poses real problems” for the agency’s ability to enforce the law. But while he came shy of attributing the deadlock strictly to ideology, everyone interviewed for this article pointed to that division. Caleb Burns, campaign finance law specialist and partner at Wiley Rein, particularly called out that division, while distinguishing between ideology and partisanship.
Burns said he was “no apologist for the FEC,” but added that the agency was “doing precisely what Congress designed it to do.”
“By creating an ideologically divided FEC, Congress ensured that the FEC can only move carefully and deliberately and cannot take action if ideological consensus is lacking. Otherwise, the FEC would become a tool for political abuse,” he said.
Burns argued the GOP’s track record “clearly demonstrates a partisan neutrality and evenhanded approach to enforcement,” noting that Republican commissioners have consistently voted down investigations “that may be based on novel legal theories, a lack of clarity in the law, or infringe on First Amendment rights,” without partisan bias.
“The Democratic commissioners strike the balance in a different place,” Burns said. “I think both sides are genuine in their belief of the proper role of the FEC, but make no mistake, this is an ideological discrepancy, not an exercise in partisanship.”
Ravel—who said that while she was at the agency, a Republican commissioner routinely entered her office to “scream” at her—pushed back on that notion.
“It’s in a way not partisanship and in a way ideological, which I tried to express when I first joined. Nonetheless, the ideology was centered on the partisanship,” she said. Asked about the Clinton ruling, Ravel said that “in that instance it would be even more embarrassing” if the Republicans had acted there, but let Trump off in later cases.
“That one was easy,” she said. “There’s no question that they’re all partisans.”
Current Democratic commissioner Ellen Weintraub told The Daily Beast that some cases do have a “partisan tinge,” which, she said, the Trump data supports—after all, the Republicans have acted in other cases.
“For a number of years the Republicans voted to block enforcement on everybody, party didn’t matter. But I think some cases still have a partisan tinge, and when you see that many cases, with the same respondent over and over again, and you can never get four votes, you really have to start to wonder what’s going on there,” she said.
Weintraub pointed to the McDougal case, where the publisher, AMI, had cooperated against Trump. They settled with the FEC for $187,000, and Trump got off without a scratch. “So you have to wonder if that’s some kind of payback,” she said.
And those kinds of suspicions, she warns, can breed in the dark.
“We are here to ensure we don’t have corruption in our political system,” Weintraub said, especially since elected officials “make the laws that they have to play under.”
“There are huge ramifications for the public’s faith and trust in government. It’s extremely hard to rebuild, but the law ought to be enforced; the public deserves this,” she said.
Sen. Elizabeth Warren (D-MA), a longtime transparency advocate who exercises oversight of the FEC, agreed that the agency was “badly broken,” and noted that the Trump data is a case in point for reform.
“The Federal Election Commission is badly broken, and I have long called for reforms to enable the agency to enforce our nation’s campaign-finance laws. The FEC’s failure to even investigate serious allegations of law-breaking by the former President only builds the case for needed change,” Warren told The Daily Beast.
Her colleague and fellow reform advocate, Sen. Sheldon Whitehouse (D-MA), cast the decisions, and their combined effect, in a wider context.
“Big right-wing donor interests target anything that stops them from rigging our political system in their favor. That’s why they’ve hamstrung the FEC, and packed our Supreme Court to deliver decisions like AFPF v. Bonta and Citizens United,” Whitehouse told The Daily Beast, saying those rulings “blew open the door” for anonymous outside spending from special interests and dark money groups.
But Whitehouse also noted that these rulings had not come from elected officials, but from political appointees. Those types of decisions, he said, were “something Americans would never abide from elected branches of government.”