Deadlock: FEC Commissioners Say They’re Failing to Investigate Campaign Violations (NBC 4 Washington)
If a campaign cheats during this election season, chances are high it’ll never be investigated. That’s according to some of the very Federal Election Commissioners tasked with enforcing the law, who call the agency “dysfunctional” and “broken.”
The FEC is made up of six people – one independent, two Democrats and three Republicans – who hold tremendous power. Under federal law, they’re supposed to investigate and penalize candidates and campaigns caught breaking the rules.
But to even investigate these complaints requires at least four votes, and a News4 I-Team investigation found they often deadlock on potentially precedent setting cases – effectively preventing those cases from moving forward.
"People know that they can stretch the law and pretty much violate the law and there will be no enforcement," FEC Commissioner Ann Ravel said in an interview with the I-Team.
She’s a Democrat from California who joined the Commission in 2013.
"When people go to vote,” she said, “they should have the confidence that the Federal Election Commission did its job to root out corruption and to look for anyone who's cheating before this presidential election. I don't think voters can have that kind of confidence."
Voting as a Bloc
Under federal law, commissioners are appointed by the president and confirmed by the Senate. No political party can hold more than three of the six seats.
Ravel said they take all kinds of votes during their meetings, often agreeing 6-0 on administrative matters, like closing a case, or when they dismiss a case with no merit. She said they will even agree to investigate complaints that result in a small amount of impact.
But when it comes to high-profile and potentially precedent-setting cases, Ravel said the Republicans always vote as a bloc – preventing an investigation.
And it doesn’t matter which party brought the complaint, according to Ravel.
She pointed to a recent case brought against Hillary Clinton’s main political action committee, Ready for Hillary, as an example.
In the complaint, Clinton’s opponents alleged the presidential candidate illegally coordinated with the group by sharing her email list with the PAC. Clinton’s lawyers filed a 70-page response denying the allegations, but the FEC’s non-partisan General Counsel requested “authorization to conduct a limited investigation.”
But FEC records show the commission deadlocked 3-3, preventing an investigation from moving forward.
Ravel explained Independent Commissioner Steven Walther often votes with the Democrats, so much so she continuously referred to him as a Democrat during her interview. "The three Democrats voted to investigate and the three Republicans voted not to.”
I-Team Tallies the Votes
After both sides provided different stats on their votes and the results of those votes, the News4 I-Team read through all of the cases that have been closed since 2015, creating a database on how each commissioner voted when deciding if the FEC should authorize an investigation.
The I-Team found the Republicans did vote as a bloc 98 percent of the time, only breaking rank four times when Commissioner Lee Goodman recused himself.
In comparison, the other three commissioners voted as a block in 87 percent of those votes.
The I-Team extended an invitation for a sit-down interview with all six commissioners – repeatedly asking the Republicans over the course of several weeks for an on-camera response to Ravel’s allegations.
At their most recent public meeting last week, Republican Commissioners Lee Goodman and Caroline Hunter declined to talk.
But FEC Chairman Matthew Petersen agreed to a quick interview during a break in the meeting.
The Republican Perspective
"The cases where we've had disagreements are based on a disagreement over what the law requires and prohibits, and there have been a number of court cases which have redefined the landscape in many significant ways," Petersen said.
He did not deny voting as a bloc but disagreed the FEC was letting potential violators off the hook.
"I would strongly dispute that allegation and don't agree with it at all," he said. “There's no signaling, so to speak, to say you're free and clear to do whatever you want because we're just not going to enforce. We've gone forward on many enforcement cases during my time here."
The Presidential Candidate You Never Saw
But Mark Everson told the I-Team the FEC is "dysfunctional."
Everson is the Republican presidential candidate you've probably never heard of. “I am a former IRS commissioner who ran for president in 2016,” he said.
He told the I-Team deadlocks aren't the only problem – he thinks the FEC takes too long to even get to those votes.
Everson filed a complaint when he wasn't allowed to participate in the first Republican debate last year.
He said he waited 11 months for the Commission to vote on whether it would investigate his case – long after he dropped out of the race.
"What they did with my case, they clearly indicated that time is not of the essence," Everson said. “This is critical because these events happen very quickly. Coverage amplifies a candidate or improves a candidate's chances. Or kills it. What is done in a debate, who gets in that debate, is critical to the election."
“The Delay Issue Is a Big Problem”
When the I-Team sorted through all cases closed by the FEC since 2015, which included cases first opened as long ago as 2009, we found it takes an average of 653 days (or 22 months) for the commission to decide whether it will even launch an investigation. To put that into perspective, that’s two months shy of an entire two-year congressional term.
And the I-Team found some complaints languished almost five years before getting to that critical vote.
When asked about these findings, FEC Chairman Petersen said, "I think we all agree that we need to do a better job, but I think that we have done a better job this year of getting through those matters."
FEC Commissioner Ellen Weintraub strongly disagreed. "The delay issue is a big problem," she said during her interview with the I-Team.
A Democrat appointed by Republican President George W. Bush, Weintraub said some of the cases they’re currently looking at “go back to 2012” and the last presidential election. “And people have the right to ask, ‘Who cares anymore?’”
To remedy the problem, Weintraub said she tried to introduce a motion last year that would have forced the commissioners into voting within six months on complaints, retaining the ability to delay if a case warranted it.
But that vote also deadlocked 3-3.
"We can't pass rules, we can't enforce the law on most major issues, we just split down the middle, and there's no action,” Weintraub said. “So people don't get guidance, and for folks out there who are in a high stakes political game and are inclined to push the rules, they see there's no real cop on the beat."
"The FEC is atrocious at enforcing our campaign finance laws." That’s why Paul Ryan said he is now taking the FEC to court. (Published Monday, Sept. 19, 2016)
“The FEC Is Atrocious at Enforcing Our Campaign Finance Laws”
That’s why Paul Ryan said he is now taking the FEC to court.
No, not the Paul Ryan leading the Republicans in Congress.
This Paul Ryan works at the non-partisan watchdog Campaign Legal Center, which brings cases against some of those Republicans – and Democrats – if he thinks they violated campaign finance laws.
"We sue Democrats and Republicans. We complain about them all and none of them like us," he said with a hint of pride.
Ryan explained he's spent his entire career trying to ensure elections are fair by bringing violation complaints to the Federal Election Commission. But, he said, “The FEC is atrocious at enforcing our campaign finance laws."
Taxpayers Foot the Bill When the FEC Gets Sued
Ryan said the FEC’s failure to investigate their complaints “has resulted in us needing to sue the FEC and drag the FEC into court to convince a judge the FEC wasn't doing its job or didn't do its job by refusing to even open an investigation.”
Ryan emphasized the FEC is wasting taxpayer money by forcing these lawsuits, which include a case filed after five different complaints came before the FEC involving both Republicans and Democrats accused of creating limited liability corporations, or LLCs, to make illegal straw donations to hide who donated the money.
"We thought, ‘Slam dunk,’” Ryan said. “We thought this was one instance in which the FEC will certainly crack down and discourage this type of illegal behavior. No. Deadlock vote."
Another watchdog group, Citizens for Responsibility and Ethics in Washington, just won a lawsuit it brought against the FEC after the agency dismissed a case against a non-profit accused of illegally spending more than $1 million on television ads in 2010 congressional races. Federal District Judge Christopher Cooper wrote in his opinion the FEC’s dismissal was “contrary to law” and ordered the case back to the FEC to investigate and “the Commission to conform with this declaration within 30 days.” The FEC said it does not comment on litigation.
Another watchdog group is also suing the agency after the FEC didn’t investigate complaints alleging a CEO tried to coerce his employees into attending political rallies and donating money to his favorite presidential candidate.
"This is illegal and we should have investigated this case and we didn't,” Commissioner Weintraub told the I-Team. “And we're being sued over it."
“I Don’t Believe” the FEC Would Investigate Another Watergate
Both Weintraub and Ravel said they agree the FEC isn't doing its job – a job specifically created to prevent another Watergate, the campaign scandal that forced President Richard Nixon to resign.
When asked if the FEC would investigate a complaint that rose to the prominence of Watergate if it came before the Commission right now, Ravel admitted, “I don’t believe that it would investigate. I think we've had some complaints that are serious violations of the law and always there has been some excuse for saying that we should not investigate, so we've been unable to get four votes to do so."
In his interview, Chairman Petersen said, “We make our decisions based on what we think is a correct read of the law. I'm not asking my colleagues and I can't in good faith on my own behalf say I'm going to cite differently than what I think the correct legal interpretation is or the correct outcome in this case is just because there's a threat of a lawsuit.”
Petersen and the other two Republican commissioners provided a four-page statement to the I-Team explaining their interpretation of the law, which they explained is a “commitment to First Amendment rights” and “requires that a higher evidentiary threshold be met before the Commission launches an investigation into a person's political activities and associations."
But Ryan contends the Republican commissioners aren’t behaving like a law enforcement agency.
“In my view, they are really putting themselves in the position of judges,” he said. “They're deciding, rather than leaving it to the courts, they're deciding we don't like these laws, we think they're unconstitutional, we're not going to enforce them. That's the real problem here."
“The Blame Is Bipartisan”
Ravel and Goodman are the only two commissioners still within their six-year terms. The others have continued to sit on the commission for eight, 10, even 13 years.
“President Obama is on the hook. He hasn’t nominated commissioners,” Ryan said, while also pointing the finger at Republican leadership in the Senate. “There’s a lot of blame to spread around. The blame is bipartisan.”
But no one can seem to agree on how to fix the FEC or if it even needs to be fixed.
Ryan supports a bill before Congress that would change the commission to just five members, creating an odd-number unable to deadlock.
Ravel said they need a truly independent “blue-ribbon panel” to suggest nominations to the president that could get through Senate confirmation.
“We need people who are of unimpeachable integrity” on the Commission, according to Weintraub. “We don’t want commissioners who are looking to those people that they’re supposed to be regulating for future employment, for future recommendations for helping them get along on their next path.” When asked if those people even exist, she exclaimed, “I absolutely believe that there are unbiased people out there.”
But Petersen said he thinks the FEC is getting the job done. “It’s not always pretty. I think all of us have an ideal of how we’d like it to work, but this is the structure that we’ve been given by Congress, and I think we’re operating to the best of our ability under it. Can we improve? Absolutely.”
So what do you think? Does the FEC need an overhaul? Or is it getting the job done? Tell us in the comments below.
This piece originally ran in NBC 4 Washington on September 20, 2016. View it here.
Paul S. Ryan is deputy executive director at the Campaign Legal Center. He has specialized in campaign finance, ethics, and election law for more than a decade and is former Political Reform Project Director at the Center for Governmental Studies (1999-2004) in Los Angeles. Mr. Ryan litigates campaign finance issues before federal and state courts throughout the United States and has published extensively on the subject of election law in journals including the Stanford Law and Policy Review and the Harvard Journal on Legislation.