SOURCE: OpenSecrets.org, 2020-06-30
The Federal_Election_Commission is once again lacking the four commissioners it needs to enforce campaign finance laws and close loopholes as Election Day nears. And good government groups are concerned the election watchdog is running out of time to get things done.
The Federal Election Commission (FEC) is an independent regulatory agency whose purpose is to enforce campaign finance law in United States federal elections. Created in 1974 through amendments to the Federal Election Campaign Act,[4] the commission describes its duties as "to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections."
Republican commissioner Caroline Hunter announced last week she will resign from the FEC to work for Stand Together, a philanthropic network bankrolled by Republican megadonor Charles Koch and other like-minded conservatives. Her departure will leave the FEC with three commissioners out of a possible six. The FEC needs four members to hold meetings to consider issues such as "dark money" and foreign interference.
The FEC was unable to meet for roughly 10 months until June 5 2020, when Trump's Republican nominee Trey Trainor was sworn in as the fourth commissioner. Trainor, who defended dark money as a Republican lawyer in Texas, was confirmed by the Senate along party lines amid opposition from some pro-transparency groups.
Trump's FEC nominee to replace Hunter will likely draw even stronger opposition. The White House announced last week Trump will nominate Allen Dickerson, legal director at the Institute for Free Speech, to be the FEC's fourth commissioner.
Allen Dickerson cheered the Supreme Court's 2010 Citizens United v. FEC decision that unleashed nearly $1 billion in dark money into federal elections over the last decade, arguing that the ruling greatly expanded Americans' freedom to speak on political issues. Since then, Dickerson has led the Institute for Free Speech's legal challenges against laws and regulations that would force politically active nonprofits to disclose their donors.
Formerly the Center for Competitive Politics, the Institute for Free Speech opposed the DISCLOSE Act, Democrats' attempt to crack down on dark money spending following the Supreme Court's landmark ruling. Dickerson argued that the bill chilled free speech rights of nonprofits to advocate on political issues. Senate Republicans successfully blocked the legislation.
Dickerson supported reversing a district court decision that unsuccessfully attempted to reveal donors to dark money groups. He led a lawsuit against California over its law that required nonprofits to disclose names of donors to the state. He also supported a lawsuit that challenged the legality of Alaska's relatively low contribution limits.
"The White House could not have found a more qualified nominee than Allen Dickerson. He will bring years of experience, expertise, and a strong commitment to the rule of law to the Commission," Institute for Free Speech Chairman and former FEC Chair Bradley Smith said in a statement. "He is a lawyer's lawyer and his temperament is ideally suited for this position."
In the post-Citizens United era, the FEC's Republican commissioners have echoed Dickerson in their arguments to justify not cracking down on undisclosed election spending by nonprofits that are not supposed to focus on politics. Republican commissioners dismissed a complaint against a nonprofit that spent nearly its entire budget on political ads during the 2014 North Carolina Senate election.
Meredith McGehee, executive director of Issue One, a cross-partisan organization that advocates for democracy reform, said in a statement to OpenSecrets it's "troubling" that Dickerson is "likely to bring a minimalist approach to transparency to the job" should he be confirmed by the Senate. She argued his organization does not follow the principle that campaign finance laws are meant to limit corruption or the appearance of corruption.
"It's alarming that Dickerson could follow in the footsteps of some of his recent predecessors who deemed laws they disagreed with as not worthy of enforcement," McGehee said. "That's unacceptable and should concern senators of both parties."
Good government groups and election watchers were already concerned about the FEC's ability to get things done in time for the 2020 election. Caroline Hunter's retirement makes things more complicated due to the lengthy amount of time it takes to confirm a new commissioner.
Trump initially nominated Trey Trainor in September 2017. The Senate Rules and Administration Committee didn't hold Trainor's confirmation hearing until March 2020. The full Senate confirmed Trainor months later, in May 2020.
Even if the Senate confirms Allen Dickerson in record time, the FEC would only have a handful of months to address issues that could be relevant to the 2020 election. The FEC had 333 cases outstanding as of March 31 2020, according to a recent report from the commission's lawyers, including several complaints related to foreign interference.
"A huge majority of voters are concerned about the enforcement of our campaign finance laws, and Hunter's resignation leaves their democratic elections with significantly less government oversight," Trevor Potter, President of the Campaign Legal Center and a former Republican FEC commissioner, said in a statement. "Elections in 2016 and 2018 saw campaign finance violations including: illegal foreign spending, a lack of transparency around the sources of millions in election spending, and candidates working illegally with super PACs."
Another question is how effective the FEC would be, even with a quorum, given that Democratic and Republican commissioners often disagree on how to fix these issues or deadlock on whether to address them at all.
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