The good news is that the nation’s top campaign finance watchdog may soon be functional again. The bad news is that its current chairman has gone off the rails.
Trey Trainor may not be a household name. But as head of the Federal Election Commission, he has oversight of the campaign finance system that underpins federal elections. And in recent days, he’s been floating baseless election fraud conspiracy theories sourced entirely to a Trump attorney who believes the Fed is out to tank the American economy in order to enrich George Soros.
“I do believe that there is voter fraud taking place” in key states in the 2020 presidential election, Trainor told the conservative outlet Newsmax last week. The allegations were quickly seized upon by the president’s allies, including his son Donald Trump Jr., in their efforts to overturn the results of an election that experts both in and out of the federal government have said was remarkably secure and reliable.
Such proclamations carry a bit of extra weight when coming from the chair of the FEC. But Trainor’s sole source for it appears to be the word of Sidney Powell, a right-wing attorney who’s representing the Trump campaign in its efforts to block the certification of President-elect Joe Biden’s election victory.
Campaign finance experts recoiled at Trainor’s apparent embrace of the dubious allegations. “My biggest concern with Commissioner Trainor is his partisanship, and to the extent that overlaps with the conspiracy theorizing about election fraud, that’s a concern,” said Paul Seamus Ryan, the vice president of litigation with the group Common Cause, in an interview on Tuesday.
But the comments were just the latest in a recent shift at the FEC, spearheaded by both Republican and Democratic commissioners, to expand its role to some degree beyond the commission’s traditional campaign finance enforcement mandate. Fueled by concerns over foreign election interference in 2016 and spurious voter fraud charges this year, the nation’s chief political money enforcer appears to be eyeing an expanded policy purview, even as the commission he served on has been prevented by internal dysfunction and a critical staff shortage from carrying out its most basic functions.
Trainor, a Texas election lawyer, is Trump’s first addition to the FEC, and since he was confirmed in May, he has dramatically shifted the ideological makeup of the panel. Though the commission hasn’t been able to do much in terms of rulemaking or proactive enforcement, Trainor has used his perch to rail against pro-transparency groups that have repeatedly sued the FEC in an effort to force the enforcement of federal election rules—or, in Trainor’s telling, to effectively remake those rules through the courts.
His comments about supposed election fraud came just days before a Senate committee hearing on nominees, one Democrat and two Republicans, to fill the commission’s three empty seats. The FEC was rendered largely inoperable this year with the departure of Republican commissioner Caroline Hunter. Without a four-member quorum to rule on major issues surrounding campaign finance and election law compliance, the FEC was unable to take any substantive administrative actions in an election year that shattered records in the amount of money that both parties brought to bear.
The three new FEC commissioners would allow the commission to resume its normal functions. But its chairman’s dubious allegations of fraudulent voting—and the larger narrative of such irregularities that President Trump has spread in a last-ditch effort to cling to power—have the potential to overshadow more substantive concerns about the FEC’s actual mission during Wednesday’s confirmation hearing.
Even prior to Trainor’s election fraud conspiracies, the FEC has been criticized in recent years for drifting from its core mission of administering and enforcing campaign finance laws. In particular the body was accused of drifting into areas of election administration that are not central to its charter—and in fact are more in line with the jurisdiction of other federal bodies such as the U.S. Election Assistance Commission.
On the Democratic side, FEC commissioner Ellen Weintraub has been vocal about probing issues less commonly associated with the FEC’s policy domain. “Allegations of voter fraud in federal elections, and the threat of foreign interference in federal, state, and local elections,” Weintraub wrote, “require the FEC to expand its purview to include issues beyond its traditional mandate,” she wrote last year to Rep. Rodney Davis (R-IL), the top Republican on the House committee that oversees the FEC.
Davis’ response channeled critics who say that expanded approach exceeds the FEC’s domain. "I am unaware of any changes to federal statute made by Congress that would allow for an 'expanded role' of the Federal Election Commission by [Weintraub’s] definition,” he wrote.
That was more or less the position held by Hunter, Trainor’s predecessor on the FEC. In her response to Davis, she said that the commission’s jurisdiction was limited to “enforcing provisions of federal law pertaining to how candidates, parties, PACs, and certain other actors raise, spend, and disclose funds related to federal elections.”
Election law experts do see some room for the FEC to get more involved in election administration issues that have to do with the raising and spending of money in federal political contests. Rick Hasen, a law professor at the University of California Irvine, said his problem with Trainor’s statement on supposed election fraud “is not the weighing in, it is the substance of what is said.”
“Trainor has made unsupported claims of voter fraud that are pernicious and undermine voter confidence in the fairness and integrity of the election,” Hasen wrote in an email. “Some of his statements seem as extreme as President Trump’s and as unsupported by the evidence.”
But those hoping for a hearing on Wednesday that sticks to the core challenges facing the FEC, the prospect of a diversion from those key issues is troubling—particularly with the president and his attorneys continuing to pursue increasingly bizarre legal challenges to the 2020 election.
“The focus should be on the business of the FEC and the suitability of these nominees to do that important work, not on crazy conspiracy theories about nonexistent election fraud,” said Common Cause’s Ryan. But, he added, “nothing would surprise me.”