After years of Republican commissioners on the Federal Election Commission refusing to take action against potential violators, Democratic commissioners thought they had a legal end-around: litigants are able to sue the FEC when it’s deadlocked, and when the FEC still doesn’t come to a conclusion, the litigants can then seek remedy in the courts.
But in August, the six-commissioner agency seated a new Democratic member—and when it comes to one key issue, she’s not voting with Democrats.
Brendan Fischer, a campaign finance law expert and deputy executive director at good government watchdog Documented, told The Daily Beast that the new commissioner’s decision to buck her Democratic counterparts could have major consequences for anti-corruption enforcement, transparency, and equity in our democracy.
“The FEC’s job is to enforce the law. The recent addition of another Democratic commissioner to the FEC appears to have the effect of less enforcement, not more,” Fischer said.
“Failing to enforce our nation’s anti-corruption laws protects a broken status quo and allows wealthy special interests to operate with impunity. Failing to enforce the law protects the interests of megadonors and shady political operatives, but it shortchanges voters and makes it harder for average Americans to have their voices heard in our democracy,” he said.
The bell tolled last week, when the FEC released a batch of decisions on enforcement matters. In typical fashion, the Republican commissioners almost always voted not to pursue further action, even in some cases where an investigation by the agency’s Office of General Counsel found “reason to believe” that violations had occurred.
But the three Democratic commissioners voted to pursue those matters, leaving the board deadlocked and unable to move forward.
However, the new Democratic commissioner, Dara Lindenbaum, voted with the three Republicans to dismiss the cases and close the files, creating a majority and signaling the end of a years-long Democratic Hail Mary legal scheme to open a new path forward for deadlocked cases.
The two Democratic commissioners, Shana Broussard and Ellen Weintraub, did not vote to dismiss and close the file. This tricky move, which they’ve embraced for a couple years now, allows good government groups to sue the FEC in federal court. Then, when the FEC defends its position and doesn’t comply with a court order to finish its business, the plaintiffs can sue the offending campaign or committee directly and let a court decide if they broke the law.
Stuart McPhail, legal counsel at Citizens for Responsibility and Ethics in Washington, explained it to The Daily Beast last November.
“You can sue the FEC if it doesn’t do its job, then a court can order it to do its job, and if it doesn’t, the complaints can go to court themselves,” McPhail said. “It’s like consumer protection and environmental lawsuits. It’s not only up to government agencies; citizens can go to court for redress.”
It’s a long process, and the first cases still haven’t wrapped up. In one high-profile instance last November, The Daily Beast reported, gun control advocacy group Giffords and nonprofit Campaign Legal Center Action sued the National Rifle Association directly after the FEC deadlocked on alleged campaign violations stretching back several years.
Conservative groups are pushing back. The NRA is one of a number of Republican groups now suing the FEC to try to thwart this plan, The Daily Beast reported in August.
The new commissioner’s choice to break with her ideological colleagues appears rooted in her commitment to bipartisanship, said Ann Ravel, a former Democratic FEC commissioner—a commitment that Ravel thinks may ultimately leave Lindenbaum “sorely disappointed.”
“When she was being vetted for this position, she stated that she would work on a bipartisan basis. This decision is probably an effort to achieve that goal,” Ravel said. “However, she will be sorely disappointed because of the unwillingness of the Republican nominees to enforce the law. This would have been an avenue to be able to enforce campaign finance laws as Congress intended.”