This piece originally appeared in the Washington Examiner on March 10, 2020.
In politics, you’re often damned if you do and damned if you don’t. The attacks at Tuesday’s confirmation hearing for President Trump’s FEC nominee, Trey Trainor, are a reminder that some people can never be satisfied.
Since September, campaign finance “reform” groups have been screaming that democracy is in peril. The Federal Election Commission lost its quorum that month with the resignation of Republican commissioner Matt Petersen. Only three commissioners, two Democratic appointees and one Republican, remain at the six-member agency, which is structured to have three Republicans and three Democrats. All three still serving are “holdover” commissioners, meaning that their statutory terms have expired, but they remain in office until their replacements are nominated and confirmed. The lack of a quorum means that the FEC cannot write new rules, open new investigations, or offer advice to speakers on how to comply with the law.
With no FEC quorum, groups on the Left have stoked fears that the 2020 election will be a “Wild West.” One said that failing to restore the quorum in an election year “would court disaster,” another claimed it would encourage election interference from Russia, and a former Democratic commissioner said that, without a quorum, “there’s no reason … to abide by rules.”
These fears range from overblown to ridiculous. No candidate stopped reporting donors or abiding by contribution limits when the FEC lost its quorum. Candidates know what the FEC’s critics try not to admit: Violations committed now can and will be prosecuted after a quorum is restored.
Even when the FEC is fully staffed, the civil enforcement process, like, we should note, the enforcement process in most government agencies and courts, can take years to deliver a final decision. So, it’s not like anyone is getting a free pass for their campaign activities over the last six months. Meanwhile, the Department of Justice remains responsible for investigating and prosecuting all criminal violations of campaign finance laws.
The FEC’s lack of a quorum does, however, cause some real problems. The commission’s inability to publish advisory opinions leaves some groups in the dark about how their election-year activities are regulated and delays commission rule-makings.
Ironically, the holdup in filling the vacancies and replacing the commissioners on expired terms has been the refusal of Senate Minority Leader Chuck Schumer to put forward Democratic nominees.
Finally, in frustration, Senate Republicans last week moved forward Trainor’s nomination, which has been pending since 2017. While not returning the FEC to its full six-member contingent, Trainor’s confirmation will restore the FEC’s balance to two Republicans and two Democrats and give it the bare minimum for a quorum.
In response, the groups crying bloody murder over the FEC’s lack of a quorum changed their talking points from, “Restore the quorum!” to, “Not this Republican!”
At the hearing, Schumer questioned Trainor’s “fitness to carry out the commission’s anti-corruption mandate” due to his “long career as a conservative political operative.”
Well, yes, Trainor is a Republican nominee.
Sen. Amy Klobuchar said Trainor “doesn’t believe in the basic campaign finance law.” Meredith McGehee, executive director of a “reform” group called Issue One, said in a statement that placing Trainor on the FEC “will only make matters worse,” adding that Trainor “does not think we should enforce the nation’s campaign finance laws.”
These attacks have been lobbed at every Republican nominee for the past 20 years. “The Republican commissioners don’t want to enforce the law,” former Democratic FEC Commissioner Ann Ravel complained to the New York Times in 2015. In 2008, McGehee, then working for the Campaign Legal Center, criticized the nomination of Republican Don McGahn, saying, “Don’t bet on tough and fair enforcement from this fellow.”
As far back as 1999, when I was nominated to serve on the FEC, the Brennan Center for Justice said that, if I got my way, “the FEC, and its state counterparts, would go out of business.” Twenty years later, the FEC and all those state agencies are still chugging along.
In reality, commissioners sometimes disagree about aspects of the law and policy. Although these disagreements tend to fall along Republican and Democratic lines, they don’t reflect partisanship so much as different views of empirical data and good policy, as well as differing theories of statutory interpretation and the proper role of administrative agencies when Congress has not spoken. Campaign finance law has produced some of the longest and most fractured Supreme Court decisions in history.
The FEC is tasked with administering the law’s finer points, so it’s not surprising that there is disagreement in this complicated field. But the Schumers and McGehees of the world routinely spout the calumny that anyone who disagrees with their strained interpretations of the law, which have been regularly rejected by federal courts, simply “doesn’t believe in enforcing the law” and, if nominated to the commission, would violate their oath of office to enforce the law.
But, as the FEC’s then-Republican commissioners explained to Politico in 2013, “Aggressive enforcement in cases where the law is vague or complicated undermines the rule of law. … Charges that the agency ‘does not enforce the law’ ignore the legal parameters set by Congress that have been further limited by the courts.”
The narrative that the FEC is toothless is just nonsense. My organization, the Institute for Free Speech, has successfully sued the FEC for overreaching, and the famed Citizens United decision may never have happened had the FEC not made the aggressive decision to treat a documentary film like a campaign ad.
Trainor’s sins here are: a) being a Republican and b) holding typical Republican views when it comes to interpreting the complex labyrinth of campaign finance law. The opposition to Trainor shows that these groups never really cared about restoring the FEC’s quorum. Rather, they want to destroy the FEC’s bipartisan structure.
These partisans regularly push bills to eliminate the FEC and transfer its responsibilities to a new agency with a partisan majority under the direct control of the president, beginning, of course, after Trump’s term. These are not advocates for a functioning FEC. The opposition to Trainor’s nomination comes from advocates of partisan, liberal control of the FEC.