Lax Campaign Law Enforcement May Empower Big Money in 2020

• Constant FEC deadlocks abet lawbreaking: Brennan Center
• Jeb Bush super PAC among cases dismissed on 2-2- vote

The 2020 election faces few campaign finance guardrails as the main enforcer of funding limits remains paralyzed by partisan rifts on how aggressively to enforce the law.

Federal Election Commission inaction means that dozens of candidates now running for president are freer to raise money for super PACs and other outside groups, in part because the commission didn’t clamp down on fundraising in the last presidential election. Super PACs can raise and spend unlimited amounts but are not supposed to coordinate their activities with candidates.

“FEC dysfunction has made it more difficult for candidates trying to follow the law, and easier for those willing to break it,” according to a report released in April by the nonprofit Brennan Center for Justice at New York University.

The commission faces a backlog of nearly 300 enforcement cases that could provide a legal roadmap for candidates on key issues such as outside group spending and foreign influence on campaigns. The release of the report by Special Counsel Robert Mueller has put a greater spotlight on foreign election interference.

But if the past is any guide, the politically split four member commission will struggle to garner the unanimous votes necessary to clarify or enforce the law as the campaign season gets underway.

Cases facing the commission in the months ahead include dozens of alleged violations of the longstanding ban on foreign spending in U.S. campaigns, according to Chairwoman Ellen Weintraub, one of the two Democratic appointees to the panel. The FEC recently voted to impose fines for a Chinese company’s contribution to a super PAC but many other cases remain pending.

FEC Fines Chinese-Owned Company for Super PAC Contribution

Mueller decided not to bring criminal charges regarding interactions between President Donald Trump’s campaign and Russia in 2016. The FEC has yet to weigh in on whether campaign finance laws may have been violated.

Cybersecurity Aid

A glimmer of hope for bipartisan consensus appeared recently with the unanimous approval of ruling that allows federal candidates to tap privately funded cybersecurity aid. “Who knows? Maybe it will be the start of a new, productive era,” Weintraub said at a May 23 FEC meeting.

Weintraub has bemoaned the commission’s backlog of cases and inability to reach agreement. She told a congressional committee that she couldn’t get her colleagues to agree even to hold extra meetings to try to work through the backlog of enforcement cases.

“Without a more aggressive schedule, and the commitment of commissioners to show up to the meetings prepared to vote on the matters on the agenda, I am concerned that the Commission will continue to lag behind,” Weintraub said in a May 10 letter to House Administration Committee Chairwoman Zoe Lofgren (D-Calif.).

Republicans on the FEC faulted “the common misperception that adherence to the rule of law and sensitivity to Americans’ First Amendment rights reflect hostility towards enforcing the law.”

A statement from Republican commissioners Caroline Hunter and Matthew Petersen dismissed charges that the FEC is dysfunctional because commissioners have different views. They blamed such criticism for undermining public confidence in the commission’s ability to administer and enforce campaign finance laws.

Enforcement Impasses

Two recent impasses on enforcement cases will provide additional leeway for presidential candidates to raise money in 2020.

Commissioners deadlocked along partisan lines on whether to investigate the 2016 presidential campaign of Jeb Bush and a supportive super PAC, called Right to Rise, which raised more than $100 million in contributions, according to an enforcement case released May 24.

The Bush super PAC collected contributions of up to $10 million each – the amount given by C.V. Starr & Co. Inc., an insurance company headed by Maurice “Hank” Greenberg. That’s far more than the $2,700 limit of direct contributions to federal candidates in effect in 2016.

(Photo by Bryan Bedder/Getty Images for Ozy Fusion Fest 2017)

Jeb Bush

Trump — who criticized Bush and others in 2016 for relying on super PACs — has now embraced this type of support and endorsed a super PAC and related nonprofit group called America First. The super PAC has raised more than $38 million since Trump became president; its largest contribution, so far, was $10 million from Las Vegas Sands Corp. casino owner Sheldon Adelson and his wife, Miriam.

Most of the two dozen Democrats running for the 2020 nomination have forsworn support from outside campaign spending groups, at least during the primaries. They’ve competed instead to raise large numbers small-dollar contributions given directly to their campaign committees. But in the general election, the Democratic winner may well depend on outside support to compete with the onslaught of Republican money.

Another commission stalemate means that presidential candidates will be able to continue raising millions of dollars through joint fundraising committees accepting huge contributions from the wealthiest campaign donors. A deadlocked May 29 vote resulted in dismissal of enforcement complaints involving contributions to such committees supporting the 2016 campaigns of Donald Trump and Hillary Clinton.

Weintraub voted with Steven Walther, who also holds a Democratic FEC seat, to investigate whether rules on earmarking and reporting of contributions were followed when money was funneled through national and state political party committees to support the presidential nominees. Two Republican commissioners voted against enforcement, so the complaints were dismissed.

Weintraub said in a statement the cases had a potential to clarify the law following the Supreme Court 2014 ruling in McCutcheon v. FEC, that loosened contribution limits.

The Supreme Court decision struck an aggregate limit on contributions by a single donor. Weintraub noted that Justice Stephen Breyer’s dissent on the McCutcheon ruling predicted it would create a “loophole measured in millions,” with donors contributing to multiple committees able to support a single favored candidate.

In 2016, a single donor could give up to $722,200 to a joint fundraising committee to support Clinton or $449,200 to back Trump. The money was divided among the campaigns and national and state party committees, then funneled back to support the presidential campaigns.

Mixed Messages

Congress is sending mixed messages that reflect the same partisan differences seen on the commission.

In the Democratically controlled House, Lofgren has promised to step up scrutiny and is pressing the FEC to address deadlocks, staff vacancies and other problems. Senate Majority Leader Mitch McConnell (R-Ky.), meanwhile, has defended the status quo and said restructuring to strengthen enforcement of the law would “weaponize” the commission.

The Brennan Center’s report released in April recommended establishing a new, five-member commission with a strong, permanent chairman to avoid deadlocks. The current, evenly divided commission created in the 1970s was structured to foster consensus and prevent campaign finance laws from being used by one party to attack the other, but that experiment has failed, the report concluded.

“While strong checks and balances are essential for any entity that regulates the political process, efforts to insulate the Commission entirely from swings of the political pendulum simply have not worked,” the Brennan Center said. “The time has come for a different approach.”

House Panel Plans First FEC Oversight

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bgov.com

To contact the editor responsible for this story: Bennett Roth at broth@bgov.com