In a Politico op-ed, Republican FEC Commissioner Caroline Hunter charges that Democratic FEC Commissioner Ellen Weintraub* “is damaging the agency and misleading the public” in a number of ways, including by “prematurely judg[ing] matters that could come before the FEC” and opining on issues “outside of the FEC’s area of expertise.”
For three reasons, this criticism rings exceedingly hollow.
First, as a logical matter, the core of Commissioner Hunter’s scattershot critique is internally contradictory. If Commissioner Weintraub’s statements are about “matters that could come before the FEC,” they must relate to compliance with campaign finance law, and so by definition those matters are not “outside of the FEC’s area of expertise.”
Second, as a presidentially appointed and Senate-confirmed government official, Commissioner Weintraub is generally free to speak out on whatever governmental matters she wishes. Limits do exist — for example, the law prohibits FEC Commissioners from divulging certain information about pending law-enforcement matters, and of course no government employee may use taxpayer time or money to conduct electioneering — but for the most part Commissioner Weintraub can say whatever she likes about whatever she likes.
Third, it is starkly hypocritical for a sitting Republican FEC Commissioner to complain about another Commissioner offering opinions. In recent years, the Republican FEC Commissioners have relentlessly opined on matters beyond their legal authority. Most notably, the FEC does not have any power to declare a law or regulation unconstitutional, yet Commissioners constantly express doubts about the constitutionality of duly enacted anti-corruption laws and regulations and insert themselves into matters to advance those views.
In one particularly egregious case, a Commissioner closely aligned with Commissioner Hunter, Donald McGahn, published a statement questioning whether a pending lawsuit on a constitutional matter was within the jurisdiction of the court hearing the case. The next day, the presiding federal judge lambasted the Commissioner in open court, noting that as an FEC Commissioner he had neither the authority nor the expertise to opine on issues of judicial jurisdiction.
It would be fair to ask if speaking out on non-FEC matters is the best use of Commissioner Weintraub’s public platform, or whether doing so might ultimately dilute the Commissioner’s voice when it comes to campaign finance matters or set a precedent that could be misused by others. It is in no one’s interest for officials such as the Secretary of Commerce to begin issuing statements about campaign finance law. And Campaign Legal Center does not hesitate to call out officeholders, regardless of party, whose public statements violate legal rules or ethical norms.
But for years one bloc of FEC Commissioners has taken an expansive view of what they are allowed to comment on. Now that another Commissioner is beating them at their own game, they are complaining. The complaints should not be taken seriously.
* Commissioner Weintraub currently holds the rotating chairpersonship of the FEC – a largely ceremonial designation that alternates between Democratic and Republican Commissioners each year.