Courts Have No Say When FEC Wants To Ignore Alleged Wrongdoing

  • Federal Election Commission chairwoman wants appellate review
  • Kavanaugh one of two judges who set keep-courts-out precedent

A decision by two federal judges is making it impossible to challenge the way the Federal Election Commission enforces campaign laws.

When the FEC deadlocks along party lines, that’s now the end of the line — no court can second-guess letting an accused wrongdoer off the hook.

In a decision handed down in March, U.S. District Judge Rudolph Contreras said he was foreclosed from reviewing the FEC’s dismissal of a complaint against a nonprofit that refused to disclose where it got the money to give more than $3 million to super political action committees during the 2012 election.

That group, New Models, spent more on political donations than anything else that year, according to a complaint by the nonprofit Citizens for Responsibility and Ethics in Washington (CREW).

The judge agreed with FEC staff lawyers who had written that the Republican commissioners who voted to drop the New Models case have “prosecutorial discretion,” and their wishes are “judicially unreviewable.”

Judicial review was eliminated last June, in a 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit. Critics of that ruling have waited for the better part of year to find out if they’ll be allowed to argue before the full court on reversing that precedent.

`Case-Killing Power’

Many FEC enforcement complaints have been dismissed on party-line votes, with Democrats voting to pursue action and Republicans opposed.

FEC Chairwoman Ellen Weintraub (D) wants the full appeals court to restore the judiciary’s check on her agency’s power to enforce — or not enforce — laws intended to let the public see who’s paying to influence their political choices.

“If my obstructionist colleagues are allowed to keep this case-killing power they have been handed, they will wield it,” she said in a written statement.

Photo by Alex Wong/Getty Images

CREW filed a motion last July called for the panel decision to be reversed. The D.C. Circuit hasn’t yet responded to that filing.

Group Says Court Ruling Guts Campaign Money Law, Seeks Reversal

Secrecy = Free Speech

The FEC is evenly divided between two commissioners holding Democratic seats – Weintraub and Steven Walther – and Republicans Matthew Petersen and Caroline Hunter.

The Republican commissioners have said they’re philosophically opposed to overly aggressive enforcement of campaign finance laws, because that could hamper free speech.

Hunter said in an interview at Penn State University that groups not organized primarily to intervene in elections are shielded from having to comply with campaign finance disclosure laws.

“One reason is that people would like to donate to a particular cause without facing public harassment,” Hunter said. “There is a wave of hostility right now from a particular side of the aisle where there is blowback on someone if they give to a certain organization.”

Hunter’s interview at Penn State’s McCourtney Institute for Democracy was aired in a Democracy Works podcast.

The case that eliminated judicial review of FEC enforcement decisions involved a now-defunct nonprofit called the Commission on Hope, Growth and Opportunity, which spent more than $4 million on television ads helping Republicans take majority control of the House in 2010.

The D.C. Circuit panel opinion was written by Judge A. Raymond Randolph, a Republican appointee, and joined by Judge Brett Kavanaugh, who’s now a Supreme Court justice.

Judge Cornelia Pillard dissented, writing that the ruling contradicted provisions of federal campaign finance law that specifically provide for judicial review of FEC decisions.

Pillard is one of seven active D.C. Circuit judges appointed by a Democratic president.

CREW said in a recent letter to the court that the effect of the 2-1 decision, unless reversed, is that “magic words” can be invoked by Republican commissioners to block enforcement of campaign finance law.

Campaign spending from undisclosed sources has totaled more than $1 billion since the Supreme Court’s 2010 decision in Citizens United v. FEC, according to spending reports analyzed by the nonprofit Center for Responsive Politics. The high court ruling allowed unlimited corporate spending in federal elections and created a flood of money from groups not formally linked to a candidate.

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

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Bennett Roth at broth@bgov.com