For years, critics have argued the Federal Election Commission has been effectively broken. Now MAGA-land is going to court to make sure it stays that way.
The FEC is charged with civil enforcement of campaign finance laws, but in recent years Republican commissioners have opted not to take action in a slew of cases—even after the agency’s own attorneys have found reason to believe laws were violated. The continual deadlock has led to accusations that the agency is broken and neglecting its duty.
Recently, however, Democratic commissioners found a way around the deadlock, opening a path through the courts if the Republicans fail to act. But it’s a long process, and now three committees with Trumpworld ties—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 the thwarters.
Democratic commissioner Ellen Weintraub told The Daily Beast that these Republicans are “perfectly happy” with the status quo.
“Unfortunately, there are some people who want to see it stay broken,” Weintraub said. “They’re perfectly happy with us failing to act. That’s a good thing to them. But they don’t get to control all the outcomes.”
All three of the committees suing the FEC were accused of campaign finance violations, and all three escaped action with a deadlocked vote.
45Committee, a nonprofit organization, was accused by the Campaign Legal Center in 2018 of improperly spending tens of millions of dollars in support of candidates during the 2016 election, including Donald Trump. Three years later, the FEC deadlocked on an enforcement decision, and CLC sued 45Committee directly in D.C. federal court this April.
The NRA and the Hawley campaign are involved in a separate action, involving an allegedly illegal, multimillion-dollar coordination scheme. They also benefited from the deadlock rule, and now face a federal suit, also in the D.C. circuit, from CLC and gun control group Giffords.
(GOP commissioner Sean Cooksey worked as general counsel for Hawley’s Senate office.)
Stuart McPhail, who has litigated a number of campaign finance cases as senior counsel at Citizens for Responsibility and Ethics in Washington, called the Republican blockade “gimmicky.”
“The goal is to prevent enforcement, and stop our lawsuits from going forward,” McPhail told The Daily Beast. “But it just furthers public cynicism when you don’t see the law enforced in these gimmicky ways.”
McPhail lamented what he sees as a partisan agency, pointing out that the Trump campaign has somehow survived dozens of cases with no Republican commissioner voting to take any action, even once.
“If GOP commissioners have unilateral authority to kill decisions, and are immune from all political and legal checks on their power, it undermines the public’s faith in the law,” McPhail said.
But there is a legal check, and the MAGA lawsuits are trying to block it.
When Congress created the FEC, they intentionally gave the agency six commissioners and required that neither party have a majority. But Congress knew this setup would at times 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,” she said.
That’s what they’re doing, thanks to a loophole that the Republicans desperately want to close. Because while the FEC needs a majority to enforce the law, it also needs four votes to close those cases.
“One day, the Democrats just said, ‘We’re not going to vote to close these cases,’” McPhail said. “That move allows plaintiffs to take the FEC to court for failing 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 started taking this route, but it’s a long one and none of the suits have made it all the way through to a judgment.
The Republican commissioners say the strategy has created “chaos” and touched off “an escalating collapse of institutional norms.”
“Lawsuits have been filed against the Commission for ‘failing to act’ even though we have, in fact, acted,” they wrote in a statement this May, claiming the Democrats have “misled respondents” by refusing to close cases where the agency deadlocked.
Weintraub called this “nonsense.”
“It’s a handful of cases—eight this year. It’s certainly not ‘chaos,’” she said. “And the norms broke down years ago. For most of the agency’s history, commissioners worked hard to find four votes for different outcomes. It is only since 2008 that we’ve had an increasing number of split votes, and we are seeing them again and again, not on petty issues, but on big, important issues. That was the breakdown in the norms.”
The NRA and Hawley campaign did not reply to emailed questions. A 45Committee representative could not be reached.
The three new lawsuits are an attempt to “fire back” at the court strategy, said Brett Kappel, an expert in campaign finance law at Harmon Curran.
The lawsuits use the Freedom of Information Act to demand that the FEC turn over its voting records, which are kept confidential until a case is closed. The MAGA groups hope to show that the Democratic commissioners acted “arbitrarily and capriciously,” as the 45Committee’s complaint puts it, in an effort “to force [them] into civil litigation.”
“They’re trying to get evidence of internal communications among the commissioners about whether they ever reached a decision to close one of these matters,” Kappel said. “But they’re trying to split hairs, and I don’t think they’re going to have any success 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’s actually a criminal violation for FEC employees to break the confidentiality rules,” Kappel said. “And the D.C. circuit has given the requirements a broad interpretation in prior litigation. The lawsuits also challenge the institutional prerogatives of the agency—if they succeed, then everybody could do this.”
Kappel also pointed out that the NRA’s lawsuit against the FEC was referred to the same judge who is hearing the Giffords lawsuit against the NRA. “I don’t think judges will be sympathetic to trying to get around discovery rules,” he said.
The FEC Office of General Counsel is defending the agency in the matter. But the Republican commissioners have criticized that defense, siding with the plaintiffs suing their agency.
Asked for comment, Republican commissioner Sean Cooksey referred The Daily Beast to a joint statement the three GOP commissioners released in late June.
“The Commission’s arguments for refusing to release the full records are wrong and do not reflect the views of a majority of the commissioners,” the statement reads, arguing that FOIA exemptions do not apply in these cases, and the release of these specific records would cause “no foreseeable harm.”
“The plaintiffs in these actions—and similarly situated plaintiffs in the future—deserve to prevail under the law,” the statement says.
Weintraub countered that it is not uncommon for the agency to leave a matter open, and there are a number of reasons commissioners might not dismiss a case—such as if the Justice Department requests them to hold off during a criminal investigation.
“They’re trying to get information on open enforcement matters,” she said, pointing out that closed records are available on the FEC website.
“But they’re not there because we haven’t dismissed these cases, and we don’t share information from open case files. No agency does,” she said. “That’s not how business is done. There’s a process and it ain’t over til it’s over.”