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A watchdog group seeking to unmask hidden campaign donors is turning to the courts as a last resort to enforce federal campaign finance laws.
Hoping to bypass the paralyzed Federal Election Commission, the Citizens for Responsibility and Ethics in Washington filed a lawsuit in September after the FEC lost a quorum of at least four commissioners needed to vote on enforcement matters. It targets the commission’s failure to act on alleged disclosure violations by two federal super political action committees that funneled almost $6.4 million to aid the 2016 election of Republican Eric Greitens as Missouri’s governor.
If successful, the legal strategy could help CREW and other groups press for for more transparency and enforcement of other rules in an election year expected to see record campaign spending, even if the commission continues to be hobbled.
“If the FEC is broken, which it clearly is, there’s a backup” that private parties can use to enforce campaign finance laws, said Stuart McPhail, a lawyer for CREW. It would be better to have a functioning, effective commission to enforce the law, he said, but absent that, these private lawsuits aim to show there’s a path for campaign finance enforcement regardless of what the FEC does.
CREW has sought to enforce federal disclosure laws against super PACs it said had “deep ties” to Greitens. Much of the money from the PACs went to a consulting firm working for his campaign headed by Nick Ayers, who subsequently served from 2017 to 2019 as chief of staff for Vice President Mike Pence. Funneling money through the super PACs to aid Greitens avoided state-level disclosure laws, and the original sources of the funds aiding the governor have never been revealed.
Greitens resigned in 2018 following probes that found he tried to avoid state campaign disclosure laws and blackmail a woman with whom he had an extramarital affair.
CREW filed the complaint with the FEC in 2018 and then sued in federal court when the commission failed to act on the complaint. Now, the group is asking the court to find the commission in default for failing to answer its lawsuit, a move that could allow the watchdog to directly sue those who set up the pro-Greitens super PACs and seek disclosure of their donors.
Without a majority vote of the commissioners, FEC staff lawyers were unable to initiate a defense of the commission in court. The commission defaulted on its obligation to respond to the lawsuit, CREW said in a motion filed in January.
CREW’s latest case, along with a series of others previously filed challenging deadlocked commission votes dismissing enforcement complaints, seeks validation that the FEC doesn’t have to have the final word, McPhail said. Those harmed by dark money groups and other violators of campaign finance laws can protect themselves if the FEC won’t or can’t do it, he said.
Others aren’t so sure. Michael Toner, a Republican election lawyer and former FEC commissioner, represents some campaign spending groups targeted in previous CREW lawsuits. He said it’s too early to tell if a few recent rulings in favor of watchdog groups that challenged FEC dismissals of enforcement complaints is part of a trend.
Over its more than 40-year history, the FEC has fended off dozens of lawsuits challenging its frequent dismissal of enforcement complaints. The commission claimed wide discretion to determine how to enforce campaign finance laws, and the courts usually deferred. Even when judges disagreed with FEC rulings, the remedy was to send the case back for FEC reconsideration.
CREW’s lawsuit was the first to be filed against the FEC after it lost its quorum in August because of Republican commissioner Matthew Petersen’s resignation. The commission now has three members — Republican Caroline Hunter, Democrat Ellen Weintraub, independent Steven Walther — and three vacancies.
A group of Republican, Democratic and independent election lawyers wrote to to President Donald Trump and congressional leaders this month to call for a revival of the FEC. The letter endorsed a plan put forward by Senate Majority Leader Mitch McConnell to replace all of the current commissioners and appoint a “full slate” of six new members. The move would force the departure of Weintraub, who’s been an outspoken critic of Trump and has accused Republican colleagues on the commission of failing to aggressively enforce the law.
A separate letter sent by watchdog groups, including CREW, countered that that while “restoring a functional FEC is crucial to our Nation’s electoral process,” it shouldn’t be an excuse for appointing commissioners “who would use that position to prevent enforcement of the law.”
The letter called for filling current vacancies quickly before the November election and then appointing a blue ribbon panel to recommend a new slate of commissioners committed to “enforcement of the duly enacted laws and regulations that protect the transparency and fairness of our elections.” That aligns with the position of Senate Minority Leader Chuck Schumer, who has recommended filling a current Democratic vacancy on the commission but hasn’t endorsed McConnell’s plan for a whole new slate of six commissioners.
Trump has nominated one new commissioner, election lawyer James “Trey” Trainor, for a Republican vacancy on the commission, but the administration has said nothing about other possible nominees.
Hunter, who is now the FEC chairwoman, said in an email that she agreed with the proposal that all commissioners should be replaced. Weintraub, the former chairwoman, said only that she agreed “the country needs a fully functional FEC.”
Sen. Amy Klobuchar (D-Minn.) and two dozen other Senate Democrats wrote to White House counsel Pat Cipollone on Jan. 15 urging the administration to act immediately to restore quorum on the FEC by supporting a Republican and Democratic nominee to fill two vacancies on the commission. Klobuchar is a Democratic presidential contender and ranking member on the Senate Rules and Administration Committee, which has authority over the commission.
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