The FEC’s Open Hostilities, Dysfunction, and Intimidation Foreshadowed the Trump Era
Democrat Ann Ravel’s departure from the Federal Election Commission could set the stage for a shakeup that propels the agency away from mere dysfunction and into the realm of aggressive campaign-finance deregulation.
The scathing “Dysfunction and Deadlock” report that Ravel released on leaving the commission makes it look as though the six-member FEC couldn’t possibly get any less effective than it is today. The percentage of substantive votes that ended in stalemate spiked from 2.9 percent in 2006 to 30 percent in 2016. Fines dropped from $5.5 million to $595,425 during that same window. Blatant campaign-finance violations on issues ranging from employee political coercion to the use of shell corporations and nonprofits to hide campaign spending went uninvestigated and unpunished.
But the FEC’s failure to enforce the rules, while a longtime sore point for watchdogs, could start to look downright harmless if President Trump hand picks a brand-new slate of commissioners, as some predict he will. The FEC’s current stalemates in part reflect its legal structure: No more than three commissioners of any party may serve at once, and the agency can only take action with a minimum of four votes. Trump could break that log jam by tapping three Republicans and one independent or libertarian commissioner inclined to side with the GOP.
It’s easy to envision the president doing just that, now that his White House counsel is none other than Republican election lawyer Don McGahn, an FEC commissioner from 2008-2013 who is widely regarded as the architect of the agency’s descent into paralysis. As Ravel notes in her “Dysfunction” report, McGahn was so disdainful of the election laws that he once openly boasted to campaign-finance experts at a University of Virginia symposium: “I’m not enforcing the law as Congress passed it. I plead guilty as charged.”
Such a clear signal of the FEC’s disinclination toward enforcement gives election lawyers, candidates, and party officials “license to violate the law,” said Ravel at a March 1 “Departing Dysfunction” event at the Center for American Progress. Ravel laid the blame squarely at the feet of Senate Majority Leader Mitch McConnell, the Kentucky Republican and champion of campaign-finance deregulation who has made sure the commission’s GOP members share his ideology. “It’s a textbook case of agency capture,” declared Ravel. “Except that in fact, it’s captured by Sen. McConnell.”
Conservatives retort that Ravel herself is to blame for partisan polarization at the FEC. A Wall Street Journal commentary, “Ann Ravel’s Loud Departure,” asserted that she “accomplished little,” while attempting to “ideologize the FEC.” But even the Journal cautioned that it would set a “dangerous precedent” for Trump to throw out the tradition that Senate Democrats recommend (and effectively select) Ravel’s replacement. That’s because if Trump bucks Senate conventions and taps his own commissioners, nothing would stop Democrats from doing the same if and when they regain power. If Republicans want to block regulatory overreach, the Journal argued, “the more durable” solution is to use their new majority to change the campaign-finance laws. (In fact, Republicans are already moving in this direction.)
Regardless of who replaces Ravel, the FEC has managed to foreshadow the Trump administration’s governance model, which favors cabinet heads who openly disagree with the missions and regulations of the agencies they run. The FEC is a “portent” of what will now happen throughout government, Ravel warned, namely that agencies will eschew transparency and accountability, serve big donors and not the public, and engage in “purposeful polarization.”
The FEC has also become the poster child for the intimidation and muzzling of any government executive who doesn’t agree with the administration, another hallmark of the Trump era. When Democratic Commissioner Ellen Weintraub used FEC letterhead to call on Trump to substantiate what she called his “astonishing voter-fraud scheme,” Republicans pounced. The conservative watchdog group Cause of Action Institute went so far as to ask the FEC’s Inspector General and its Designated Ethics Officer to investigate whether Weintraub violated rules that require federal workers to use government resources only for “authorized purposes.”
Weintraub correctly retorted that it is “absolutely” within her authority to “comment publicly on any aspect of federal elections in the United States,” adding: “I will not be silenced.” In case Republicans have forgotten, election administration was part of the FEC’s original mandate. The agency’s Office of Election Administration served as a national clearinghouse for states on election best practices, including such matters as ballot integrity and voter registration.
True, the FEC transferred its election administration assets over to the Election Assistance Commission, established in 2002 by the Help America Vote Act. But guess what? Republicans on Capitol Hill have moved to eliminate the EAC with a bill that explicitly calls for that agency’s election administration functions to be transferred back to the FEC. Republicans want it both ways—arguing that the FEC should resume its old election administration function, while asserting that no commissioner should breathe a word on that topic.
Specious attacks like the ones leveled at Weintraub are becoming the new normal under a president who has frozen federal hiring and moved to silence government employees, and under a Congress that has given itself fresh powers to engage in political retribution. An arcane rule revived by House Republicans in January frees lawmakers to single out and target specific government workers or programs for elimination by slashing their salaries or funding via appropriations legislation.
Personal assaults on individual federal workers represent “a dangerous trend in government,” said former FEC general counsel Lawrence M. Noble, now general counsel for the Campaign Legal Center, at this week’s CAP forum. He noted that such attacks intimidate employees, make it hard for them to do their jobs, drive qualified workers from government service, can subject public servants to costly lawsuits, and—in the age of social media—even threaten their personal safety.
Ravel told the CAP forum that she had received her “last threatening letter” on her final day at the FEC. She observed that women, in particular, shy away from public service when they see how much “vitriol and nastiness” is thrown their way. Ravel acknowledged that The Wall Street Journal had criticized her for “talking too much,” but added: “I don’t think they’ve seen anything yet. I intend to keep talking.” It remains to be seen whether her successor will enjoy that luxury.