Push to Revive FEC Could Curb Court Action on Campaign Finance

Advocates of stricter campaign finance law enforcement fear a Senate Republican push to restore a quorum on the Federal Election Commission could thwart their ability to pursue alleged violations in court.

The Senate Rules and Administration Committee is expected to vote Thursday to advance Texas election lawyer James “Trey” Trainor to fill a GOP vacancy on the panel.

With his confirmation, an equally divided FEC could resume its pattern of deadlocking on enforcement cases, leading to dismissal of alleged violations of disclosure requirements and other campaign finance laws, says a campaign finance watchdog.

FEC staff lawyers would also be able to defend such dismissals in court and prevent alleged violators from being sued, said Adav Noti, a former commission staff attorney, who’s now chief of staff at the nonprofit Campaign Legal Center. Democrats and campaign finance groups said Trainor would likely vote to block enforcement action in key cases.

In the absence of a quorum, which the FEC has had for months, lawsuits “can mean faster enforcement and more meaningful penalties, as well as establishing binding precedent for future cases,” Noti said in an email.

Republicans say a functioning commission is necessary to provide advice to federal candidates in an election year. Candidates also need the commission’s help “to address the unique challenges they face as a result of the coronavirus pandemic,” said Sen. Roy Blunt(R-Mo.), who is chairman of the Rules and Administration Committee.

(Photo by Andrew Harnik/AP Photo/Bloomberg)

Sen. Roy Blunt (R-Mo.)

Campaign finance groups have aggressively pursued legal action since the resignation of GOP-appointed commissioner Matthew Petersen in August paralyzed the election regulator.

The Campaign Legal Center has a pending lawsuit, filed in February, seeking to force Facebook Inc. to disclose who paid for online political ads that promoted Green Party candidates in House and Senate races in the 2018 midterms.

Read More: Watchdog Sues to Force Facebook to Reveal Political Ad Sponsor

In a key case brought by the watchdog Citizens for Responsibility and Ethics in Washington, U.S. District Judge Royce Lamberth ruled in April that the commission had defaulted due to lack of a quorum. If a quorum is not restored by July, CREW would be able to sue those involved in establishing federal super PACs funded by mysterious contributions of almost $6.4 million.

Read More: Courts Urged to Enforce Campaign Finance Law as Regulator Idles

Breaking Tradition

Democrats and campaign finance groups have also complained that the Trainor nomination breaks the tradition of appointing FEC nominees in bipartisan pairs. Senate Democrats have recommended Shana Broussard, an FEC staff attorney, for a Democratic commission vacancy, but President Donald Trump hasn’t nominated her.

The FEC has seats for six commissioners evenly divided between those recommended by Democrats and Republicans. Critics say the current appointment process emphasizes commissioners’ loyalty to party and ideology and needs to be changed to emphasize strict law enforcement for all sides.

“For the FEC to do its job to protect the voices of all voters, not just special interests, the agency and the nomination process must be reformed,” Trevor Potter, an election lawyer and former Republican FEC commissioner who’s president of the Campaign Legal Center, said in a statement in March opposing Trainor’s confirmation.

Attacks similar to those now being leveled at Trainor, “have been lobbed at every Republican nominee for the past 20 years,” Bradley Smith, a former Republican FEC commissioner who heads the nonprofit Institute for Free Speech, wrote in a Washington Examiner op-ed in March.

Trainor’s critics claim they want the commission’s quorum restored, but they don’t want any Republican commissioners “holding typical Republican views when it comes to interpreting the complex labyrinth of campaign finance law,” Smith wrote.

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

To contact the editors responsible for this story: Bennett Roth at broth@bgov.com; Kyle Trygstad at ktrygstad@bgov.com