This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
The lights are out at the Federal Election Commission, and it comes at a time when we need the campaign finance regulator more than ever.
In just a little over a year, American voters will elect the next president, all of the members of the House and a third of the Senate, as well as eleven governors and 45 state legislatures in 2020.
After the Russian government meddled in the 2016 election, federal regulators like the FEC should be more active than ever. Yet the agency voters need to fight against foreign interference in our elections has been sitting idle.
The agency still opens and closes on business days, but the FEC has lost its quorum of commissioners. This effectively paralyzes an agency that was already plagued by gridlock.
Back in March, there was a small glimmer of action from the FEC when it announced a settlement with a super PAC for violating a ban on foreign nationals’ spending in the 2016 election. Chinese owned company American Pacific International Capital gave $1.3 million to the pro-Jeb Bush super PAC Right to Rise. The settlement slapped Right to Rise with a $390,000 fine and the Chinese company with a $550,000 fine.
Yet any hope that the FEC would tackle Russian interference was dashed when the commissioners deadlocked on a key question in August.
The FEC could have looked into Russian agent Maria Butina and Russian official Alexander Torshin and their alleged involvement with the NRA during the 2016 presidential election, but it refused to investigate. The current chair of the FEC put out a statement expressing her frustration with the agency: “Some allegations are too serious to ignore. Too serious to simply take Respondents’ denials at face value. Too serious to play games with. Yet in this matter…this agency barely lifted a finger to find out the truth behind one of the most blockbuster campaign finance allegations in recent memory.”
As I explain in my book Political Brands, Torshin, in particular, deserves some scrutiny. He is wanted for money laundering in Spain, and he ingrained himself into the upper echelons of Republican politics by making friends at the top of the NRA in the lead-up to the 2016 election. His employee, Butina, is still in federal prison in Florida after pleading guilty to other crimes.
Earlier in 2018, the FEC deadlocked on new rules to prevent foreigners from spending in U.S. election. And for years, the FEC failed to move forward with any new rules to address dark money (instances when political donors are unknown).
Already hamstrung by the commissioners’ inability to come to any agreements, the FEC lost its quorum in August when one of its commissioners quit to join a private practice. Though the FEC was nearly inert before, it now legally cannot do many of its basic functions.
I’m scheduled to testify about this during a House committee on Wednesday. This is the first House oversight hearing on the FEC since 2011, so holding the hearing is a step in the right direction.
However, the impediment to strengthening campaign finance regulation does not lie in the House. It has already passed H.R. 1, an anti-corruption bill that includes several campaign finance reform measures and changes the makeup of the FEC.
Standing in the way of H.R. 1 and every other democratic reform is Senate Majority Leader Mitch McConnell (R-KY). He could allow votes on H.R. 1 in its entirety, or certain measures within the bill that would ensure a more resilient and transparent 2020 election. I hope Senator McConnell will do the right thing, but I’m not holding my breath.
Ciara Torres-Spelliscy is a Professor of Law at Stetson Law, a fellow at the Brennan Center for Justice at NYU School of Law and the author of Political Brands.
Great article. Not sure I wanted to start my morning this way, however.
Not a great start to the day.
However, on the other side of the pond, BoJo the Clown was slapped down by the British Supreme Court and his prorogation of Parliament declared unlawful and nullified. Calls from all sides for him to resign (he previously claimed he wouldn’t, even if he lost). MPs are returning to Parliament tomorrow without BoJo who’s in NYC for the climate conference.
Wonder at what point he turns from Cheatolini’s best bud, “brother from another mother” into just another Covfefe Guy (“loser I never knew/met”)…?
The whole board system is pretty much broken in the U.S. Similar dysfunction or inability to function has occurred in other national boards, such as the NLRB or the SEC. I don’t see a way forward for these agencies in which they can’t be sabotaged by Republican inaction.
Instead, remove the restriction against private individuals for suing for violations. For example, currently if your employer retaliates against you for trying to start a union, you can’t sue them but have to make a complaint to the NRLB and hope they investigate/fine the company. Allowing the harmed candidate/campaign to directly sue the individual/group who violated election law would at least provide one avenue for justice.
I have mixed feelings about the private right of action, because rich republicans. It may be the only way forward, but it would have to be accompanied by some fairly strong anti-SLAPP measures. Otherwise you’d get privately-funded equivalents of all those voter-suppression and anti-voter-registration laws that are percolatingthrough red states.
No doubt that’s a real risk and I’m not sure what the best way to minimize the potential damage. However, I think that alternative is better than the current system where large scale illegal action is either not punished or lightly fined. One of the not well publicized reasons for the drop in Unionization is the fact that union busting is so profitable. At worst, you get a slap on the wrist fine from the NLRB. Same thing with election violations from the FEC or financial crimes with the SEC.
Threaten an endless string of multi-million dollar jury awards and voluntary compliance would vastly increase