All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

Weintraub's Enforcement Votes Exhibit Bias Against Trump and Republicans

(This is the third in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second installment is here, and the last installments will be posted in the next few days.)

Commissioner Weintraub's Enforcement Votes Exhibit Bias Against President Trump

Commissioner Weintraub's votes in recent enforcement matters also have raised eyebrows because she has rejected FEC General Counsel recommendations to dismiss matters and treated President Trump differently than she treated President Obama.

In a case, Matter Under Review 7244, where a complaint alleged that President Trump's Inaugural Committee incorrectly reported the addresses of a handful of donors out of many thousands of donors, errors had been corrected in amended reports.  In 2009 and 2013, the Obama Inaugural Committee filed amended reports to clear up errors, and the Commission took no enforcement action.  The Obama campaign also had taken in upwards of millions of dollars from foreign addresses, but claimed that it refunded those contributions.  In Obama cases, Weintraub voted to dismiss complaints and not even investigate.  Accordingly, the FEC General Counsel recommended dismissal of the Trump Inaugural Committee.  But Weintraub voted against dismissal.  She rejected her own General Counsel's recommendation, apparently because President Trump will face more severe enforcement than President Obama received. 

In another case, Matter Under Review 7100, a complaint alleged that Donald Trump made personal use of his campaign's funds by promoting Trump Organization products and properties by using them for campaign events.  The law allows candidates to use corporate resources so long as they pay a fair market price for use of the resources.  Accordingly, Trump paid for all uses of corporate resources. And most of the money in Trump's campaign fund was contributed by Donald Trump himself -- so improper personal use was hardly a risk.  Accordingly, the FEC General Counsel recommended dismissal of the complaint.  Weintraub voted against the FEC General Counsel's recommendation to dismiss.  Weintraub then issued a gratuitous statement chastising President Trump:  "Trump hotels, Trump steaks, Trump water, Trump golf courses, Trump wine," she complained, calling the campaign's use of Trump properties one big "infomercial" for Trump's corporate properties and products, which amounted to personal use of campaign funds.  Never mind that Trump funded his own campaign and never mind that the FEC General Counsel recommended dismissal.  The FEC needed to investigate and punish.

And in yet another case, Matter Under Review 6961, a complaint alleged that the Trump campaign failed to pay an event-service company for services in setting up Trump's presidential candidacy announcement event, but it turned out that the Trump campaign indeed had paid a contractor event-service company who in turn paid the subcontractor event-service company in question, and the payment showed up on a subsequent public report filed with the FEC.  The FEC General Counsel recommended dismissal of the complaint.  Here, even though she voted to dismiss the complaint, Weintraub voted to send a "caution letter" to the Trump campaign, apparently to stigmatize Trump in a case that even Weintraub conceded had little merit. 

These are three different cases with a common denominator: Commissioner Weintraub went against the FEC General Counsel's recommendation of dismissal because the complaints were all against Trump.  As we are detailing in this series, this is part of a pattern of a troubling appearance of bias by Commissioner Weintraub against Republicans in general and President Trump in particular.

Weintraub's Personal Staff Exhibits Bias Against Trump and Republicans

(This is the second in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the third is here, and the next installments will be posted in the next few days.)

Commissioner Weintraub's Personal Staff Routinely Trolls President Trump and Criticizes All Things Republican

Since President Trump took office, Weintraub's personal staff has been tweeting almost daily invective about President Trump and Republicans on the Twitter account altFEC, self-described as "The unofficial Resistance team of the U.S. Federal Election Commission." "Resistance" means resistance to the Trump Administration.  Consider a few examples of the kind of deep enmity and prejudice expressed toward President Trump:

• Gleefully: "Mr. Art Of The Deal got his ass kicked by the D.C. City Government"

• Directed at a Donald Trump tweet on legal issues likely to be addressed by the FEC:  "Once this is over, however it ends, we’re going to wonder, 'Why did we put up with this nuttiness for so long?'"

• Retweeting James Comey's criticism of President Trump on issues likely to come before the FEC:  "Thought experiment: Make a list of all the public figures in this country and around the world the current president has criticized. Ask yourself: 'Why is Putin missing from the list?' No responsible American should ever stop asking, 'Why?'" 

• Mocking Trump:  "Where are Hillary Clinton's emails? Mr. Trump said.  Oh, here's one.  [faux email from Hillary Clinton to Donald Trump]  Resign, you treasonous clown." 

• Criticizing Trump:  "Oddly, as his behavior gets more erratic & overtly pro-Russian, it may actually be a sign that Trump is *not* a Russian agent. Because at a certain point – one already passed – you would think his handlers would say, 'Yo, dude, tone it down a little. You’re being too oobvious [sic].'” 

• Prejudging alleged payments by Trump to Cohen as undisclosed campaign expenditures, a matter likely to come before the FEC:  "So, the payments Trump made to Cohen to cover the #Stormy payoff included money for “a few other situations that might have been considered campaign expenses,” Giuliani tells @costareports. Why weren’t *these* expenses disclosed? https://t.co/lKJFLA1fbA" 

• Promising Trump detractors to conduct private investigations of their secret complaints.

• Exhorting cable carriers to drop Fox News -- a news channel Commissioner Weintraub concluded broke the law by hosting a Republican debate in 2016:  "Here's a question. The more people watch #FoxNews, the less well-informed they are about basic facts. Arguably, FOX is tearing at the fabric of our democracy. They have a 1st Amendment right to exist, but not to be carried by cable companies. So: Why do cable companies carry it? https://t.co/0Ttqvrl5EQ"   

The person responsible for this anti-Republican venom is none other than Weintraub's confidential counsel, Tom Moore, who was publicly identified as AltFEC by Rudy Takala of The Hill on his Twitter feed on February 26, 2017.  People close to the Commission confirm that Weintraub is aware of Moore's anti-Trump crusade and approves of his activities.  According to one source, Weintraub has been known to defend Moore's right to express his anti-Trump hostilities (anonymously!) toward the very people who are the subject of FEC enforcement authority by invoking the First Amendment -- a constitutional provision she rarely acknowledges when supporting enforcement against other citizens.

How can Commissioner Weintraub's office be viewed as fair, neutral, impartial when such nasty ad hominem attacks at President Trump are being published by her personal staff?  It simply cannot. 

Like Strozk, FEC Commissioner Weintraub Should Be Recused from Trump Cases

(This is the first in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The second is here, the third is here, and the last installments will be posted in the next few days.)

From the Department of Justice to FBI leadership to the halls of Congress to American public opinion, nobody can credibly defend the conduct of FBI investigator Peter Strozk.  His blatant and deeply personal bias against Donald Trump, the subject of his investigation, and his politicization of FBI investigations cannot be condoned.  Strozk and his girlfriend Lisa Page were properly removed from the Mueller investigation team.  Even after their removal, however, their involvement in the Clinton email investigation and the Russian meddling investigation has left both investigations tainted.

Which brings us to other law enforcement agencies and officials whose prejudice and enmity for President Trump is as deep and even more vocal than Peter Strozk's.  Strozk was a small player, one of several line investigators, and his personal emails and opinions about Trump -- as explicit and biased as they were -- pale by comparison to mounting evidence of anti-Trump prejudice in the office of Democratic Federal Election Commission Vice Chair Ellen Weintraub -- a Commission decision maker and powerful leader of the agency who is scheduled to become agency Chair in four months. 

Commissioner Weintraub has joined the political opposition to President Trump.  Weintraub started lobbing gratuitous political volleys at President Trump soon after he was took office.  She publicly jousted with President Trump over claims of voter fraud, an issue outside the jurisdiction of the FEC.  That drew a complaint to the FEC Inspector General.  Weintraub quickly -- and lamely -- attempted to link her foray into the President's voter fraud politics to her official duties as a Commissioner, while at the same time rallying her own political support on Twitter and elsewhere, declaring that she would not be "silenced." 

But Weintraub's post hoc effort at legitimization was transparent. A single Commissioner has no authority to launch an investigation by letter to the President (or any other witness).  Her missives to the President could not possibly constitute the conduct of official FEC business because it was unauthorized and out of order.  This was confirmed when Project Veritas confronted Weintraub with actual evidence of voter fraud in New Hampshire and asked her pointedly what she intended to do about it, but Weintraub suddenly claimed she could not comment publicly on the issue.  She has done nothing since that time to prioritize the issue.  Letters loudly jousting with the President took priority, but serious, official action can wait and must remain hush-hush.      

Weintraub also published a mean-spirited diatribe against the President's legal counselin a Washington Post op-ed at the beginning of the administration.  That's far afield from the business of the FEC, and its terms were so personal and nasty that Weintraub's hatred for the Trump campaign and its lawyer were on full display. 

All this political jousting indicates one thing: that Commissioner Weintraub started off with a clear bias against Donald Trump, his lawyer, and his administration.  

Commissioner Lee Goodman Defended 1st Amendment and Rule of Law at FEC

Republican Federal Election Commission Commissioner Lee Goodman announced today that he will resign from the FEC on February 16 to join the political law practice at Wiley Rein.  In his four years of service at the FEC, Commissioner Goodman has been a stalwart defender of the First Amendment, due process, and the rule of law, often speaking out strongly against the efforts of his Democratic colleagues to regulate political speech on the Internet and change the rules governing political activity after the fact and without following proper regulatory procedures.

Commissioner Goodman described some of the achievements of the FEC during his tenure in his resignation letter to President Trump:

We issued several advisory opinions recognizing the use of new technologies to galvanize political participation . . . .  Meanwhile, we restrained unlawful efforts to regulate, and in some cases censor, American citizens’ political opinions on YouTube and Twitter, as well as the freedom of press outlets like Fox News and WCVB-TV of Boston to make editorial decisions concerning their political coverage. . . .  

Most importantly, I have faithfully discharged my responsibility to balance the agency's regulatory objectives with the First Amendment rights it regulates.  Since the agency’s inception, the Federal Election Commission’s unique mandate to respect the core constitutional rights of citizens acting, speaking and associating for democratic purposes has provoked criticism from those who disagree with the balance drawn.  Some would even prefer the Commission ignore the First Amendment altogether.  But protecting First Amendment rights is an inherent part of the Commission’s mission. Thus, I have endeavored throughout my service to preserve the Constitutional right of American citizens to speak, hear, and think freely about their democracy. It has been my duty and privilege to defend this fundamental human freedom.

Commissioner Goodman's steadfast efforts to protect Americans' rights of free speech and due process have been recognized by the election law community.  RNLA leaders and members were quick to praise him when his resignation was announced:

RNLA President Elliot Berke: "Lee's tenure on the FEC was marked by grace, dignity, and professionalism. He is a good man and a good friend and I wish him nothing but the best as he returns to the private sector." 

RNLA Chair John Ryder: "Lee Goodman is a fine lawyer.  The FEC and the country were fortunate to have his service over the past several years.  His strong defense of the First Amendment rights of all Americans will be missed on the commission." 

RNLA Vice President for Election Education David Warrington: "As an FEC Commissioner and former Chairman of the agency, Lee was a champion for the First Amendment and the right of all Americans to participate in the political process.  He defended those rights at a critical time when they were under assault by those inside and outside the government that sought to restrict the freedoms of speech, assembly, and the press.  I am sure he will continue fighting for those same principles as he returns to the private practice of law." 

RNLA Member (and Mr. Goodman's future Wiley Rein colleague) Eric Wang: "Lee was a great champion for protecting political speech on the Internet from excessive regulation by the FEC, and for keeping the agency from interfering with the news media.  Lee also fought hard to ease the regulatory burden on the beleaguered national and state party committees.  I look forward to working with Lee as he presses on with these battles on behalf of clients."

RNLA Executive Director Michael Thielen: "All Americans are indebted to Lee Goodman for his work to preserve First Amendment rights and his efforts to prevent the FEC Democrats from politicizing the FEC to achieve their liberal policy goals.  Lee is passionate about the Constitution, the rule of law, and free speech, and he will represent his new clients at Wiley Rein well.

For some examples of the many ways in which Commissioner Goodman has defended the First Amendment and the rule of law at the FEC, read our past blog posts on him here.  Thank you, Commissioner Goodman, for your faithful service to our country!

Trump Resistance at FEC Misstates First Amendment Law

The @alt_fec Twitter account is run by self-proclaimed FEC employees who are experts in campaign finance law.  But they managed to mis-state First Amendment law three times in one Tweet attacking the Institute for Free Speech and requesting IFS' "views on the First Amendment implications of a letter from a private attorney to a private publisher concerning Fire and Fury: Inside the Trump White House."  IFS accepted the invitation to analyze the letter under relevant First Amendment law (footnotes omitted):

The author behind @alt_fec suggests that this is our “chance to denounce the President’s attempted prior restraint of a book – just about the worst [First Amendment] violation there is.” . . . 

First, the letter protesting Fire and Fury is from Donald Trump’s private attorney. Donald Trump, the man, is different from Donald Trump the President. The letter isn’t an attempt by the President to prevent publication using the powers of his office. It’s a warning from a private party that he will sue for libel if the book is published. 

Second, this isn’t a prior restraint. By definition, a prior restraint involves a legal prohibition on publishing something. Threatening to sue after publication isn’t a prior restraint. 

Third, there is no First Amendment violation when a private party sends such a letter. The First Amendment prohibits action by the government, not private individuals.

IFS then describes how proving libel against public figures requires a showing of falsehoods printed with "actual malice," a very high bar established by N.Y. Times Co. v. Sullivan.  This is the actual First Amendment question at issue here, not the prior restraint question identified by @alt_fec:

Such errors are among the reasons why @alt_fec has little credibility on First Amendment matters, and why we do not intend to respond to future attempts to bait us with patently ill-informed, partisan broadsides. But this particular tweet provides a teachable moment which, as a nonpartisan organization dedicated to a robust (and accurate) view of the First Amendment, we couldn’t let pass.

Yet, the FEC resistance movement is unperturbed by misstatements of the law and has since reiterated their initial, faulty analysis of the letter.  This is just a microcosm of the tactics of the movement to resist President Trump: partisan attacks, little respect for facts or law, and manufactured outrage.

FEC Should Let the Internet Remain a Haven for Free Speech

RNLA Advisory Council member Dan Backer cautioned against further regulation of political speech on the Internet in The Hill.  He noted that FEC Democrats are using the allegations of Russian interference in last year's election to call for regulatory changes, but paid political communication on the Internet is already regulated by the FEC:

Broadening Internet regulations is a bureaucrat’s solution in search of a problem. As outlined in the Federal Register, the FEC already requires a disclaimer for any “public communication” that is “placed for a fee on another person’s website.” This includes paid express advocacy — any paid communications “advocating the election or defeat of a clearly identified candidate." Whenever an individual, corporation, labor union, or political committee “pays a fee to place a banner, video, or pop-up advertisement” on another’s website, they are engaging in “public communication” that requires a disclaimer.

But an individual's ability to speak and disseminate his or her message for free on the Internet has made it into a bastion of free speech that amplifies individual voices, and the FEC should not destroy it through regulation:

This consideration alone has compelled the FEC to allow the “vast majority of Internet communications” to “remain free from campaign finance regulation.” And our public debates have been better off for it. 

For good reason: Everyone can watch television or listen to the radio, but only those with money can use these mediums to communicate. The shift from receiving information to conveying information was a quantum leap, and the Internet enabled that. Today, we’re all essentially media entities, since we can all disseminate our ideas to the general public. This is a powerfully democratizing force. The FEC’s rulemaking would turn the clock back to the 20th century. 

The Internet must be left largely unregulated to preserve it as a convenient, inexpensive, and easily accessible tool for the robust exercise of free speech. The Internet’s unregulated nature is, at least in part, its charm. Even the FEC has recognized as much, describing the Internet as “a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”

We thank the Republican FEC commissioners and free speech advocates like Mr. Backer for fighting against the FEC Democrats' and the "reform" community's harmful urge to regulate core political speech.

Democrats' Next Target: FEC and Further Regulation of Political Speech

Last week, Business Insider alluded to the next target by the left--further regulation of political speech by the Federal Election Commission (FEC). Business Insider reported:

Democrats in the House and Senate sent a letter to the Federal Election Commission on Wednesday urging it to "develop new guidance" on how to prevent illicit foreign spending in US elections in the wake of Facebook's announcement that Russia-linked accounts purchased $100,000 worth of ads last year. ...  

Looking ahead to the 2018 elections, the Democrats called on the FEC to implement improved disclosure standards "to ensure voters have the information they need to evaluate political advertising" — whether it appears on TV, the internet, or elsewhere. "There is no reason to believe this behavior will stop in future elections," they said. The FEC last approved regulations governing certain types of internet communications by political committees and campaigns in March 2006, when it amended its rules to include paid online ads as a form of ‘‘public communication.’’

The full letter to the FEC can be read here.  RNLA Executive Director Michael Thielen warned against a rush to regulate political speech yesterday.

Well, on Tuesday, the Democrats attempted to follow this letter up with action. Representative Theodore Deutch of Florida introduced legislation targeting political speech, called the Campaign Sunlight Act of 2017.

Some of the key aspects of this bill include:

• (Sec. 2) Most political advertisements must be immediately filed with the FEC for documentation;
• (Sec. 2 (e)(2)) FEC would post the ad or advertisement or material on an online catalog or public website with full links and documentation of the facts being asserted ("sources cited");
• (Sec. 2 (e)(2)(D)) However, the FEC would be able to charge a fee--ultimately a tax--on political speech to fund the website; 
• (Sec. 3) This would apply to almost any effort to highlight or broadcast political positions, as "political advertisement" is defined as a communication covered by 52 U.S.C. § 30120(a) that refers to a clearly identified candidate in the year prior to an election.  

By doing this, Democrats are attempting to tax and regulate our political speech. This bill would further politicize the FEC by turning the commission into a taxing entity and library storing political speech made by groups that just expressing their First Amendment rights. 

The burdens this bill would place on speech are onerous. In addition to the existing (high) compliance costs for political speech, this would require entities and individuals to pay a fee for the privilege of engaging in one of their most important rights for a full year before the election: the right to talk about candidates. How quickly we forget that we fought a Revolution in part because an unaccountable government imposed a tax on our ability to speak.

The bill in its current form is likely to go nowhere. However, it is important to highlight the efforts of the Democrats and the left to quietly target and attempt to further regulate political speech. 

RNLA Congratulates Trey Trainor on Nomination to the FEC

Today, the RNLA officially congratulated Trey Trainor on his nomination to be a Commissioner on the Federal Election Commission (FEC):

Mr. Trainor’s credentials are impeccable.  He is a leading election lawyer and an expert on campaign finance issues.  He has spoken at many RNLA National Election Law Seminar trainings.  He is currently a partner specializing in election law, campaign finance, and ethics at Akerman LLP.  Previously, he has served as Special Assistant to the Secretary of Defense in the Department of Defense’s Office of General Counsel; as General Counsel to the Texas Secretary of State; on the Standards Advisory Board to the U.S. Elections Assistance Commission; as Counsel to the Texas House Committee on Regulated Industries; and in various capacities in the Texas Legislature. 

Leading members of the election law and campaign finance bars who are RNLA members have praised Mr. Trainor’s nomination:

Benjamin Barr, President of the Pillar of Law Institute: "Mr. Trainor is nationally distinguished for his expertise in election law. Beyond this, Mr. Trainor has shown an unwavering dedication to preserving the First Amendment rights of average Americans--a position that has consistently been upheld by the courts. The FEC can only benefit from Mr. Trainor's knowledge and proven ability to help it carry out its mission." 

Kory Langhofer, Managing Attorney, Statecraft PLLC, and Litigation Counsel, Trump for America, Inc.: “I’ve worked with Trey, know him well, and hold him in high regard.  He is an excellent pick, and I am confident he’ll serve the country well on the FEC.” 

Joseph M. Nixon, RNLA Texas Chapter Chair and Partner, Akerman LLP: “Trey is a brilliant lawyer, extraordinarily principled and well-schooled in election law. The President has made a fine choice.”

RNLA Executive Director Michael Thielen agreed: “Trey Trainor has deep knowledge of campaign finance law, a breadth of practical experience, and impressive legal skills.  In addition to his skills as a lawyer, he is a man of character who is well-respected by everyone who knows him.  He will serve with distinction on the FEC with his respect for the rule of law and First Amendment rights that is desperately needed at the agency that regulates political speech.”

Unfortunately, liberals and the media are already baselessly attacking Mr. Trainor for his conservative views and his support for important First Amendment rights, just as they have attacked all recent Republican FEC commissioners--Lee Goodman, Caroline Hunter, Don McGahn, and Matthew Petersen--for their respect for the rule of law and support for the First Amendment.  

The RNLA will be countering these attacks and supporting Mr. Trainor's nomination in the next weeks and months.  Stay tuned here for further information on his character, legal philosophy, and qualifications and how you can help support his swift confirmation to the FEC.

Latest FEC Reform Proposal Would Threaten Free Speech

RNLA Advisory Council member Dan Backer wrote about the serious problems with the latest proposal to "reform" the FEC:

The legislation would overhaul the Federal Election Commission (FEC) by lowering the number of FEC commissioners from six to five, supposedly putting an end to “gridlock.” The bill would also “reduce partisanship” by limiting commissioners to serving one term and granting the president power to nominate an FEC “chair” to serve for 10 years. This chair would have the authority to act independently of other commissioners, centralizing power in a single unelected political appointee.  

“Reducing partisanship” is the wrong priority. As a nation, we don’t agree on many issues and we shouldn’t gloss over—or worse, use government to suppress—our disagreements. What’s wrong with different people who lead different lives in different parts of the country having different ideas? Only by airing these debates and disagreements can we reach consensus or compromise—or not, and that’s fine too. 

Donnelly’s legislation will openly weaponize the FEC, as it allows one side of the aisle to impose its will when there is legitimate disagreement over complex legal matters. . . . For decades, the independent, six-member FEC has remained bipartisan by design, precisely because it has the power to restrict speech about politics—the very heart of our freedoms of speech and association.  

Under the proposed Donnelly-Renacci legislation, Democrats and Republicans would receive two commissioners each, allowing the president to pick the tiebreaker for the next decade. Consolidating partisan control for 10 years at a time does not sound like an improvement.

While the current structure of the FEC is not perfect, it does provide some protection for political speech by requiring a minimum bipartisan consensus to take any action.  Given the sensitive and important political speech rights regulated by the FEC, any efforts to "reform" it by placing more power in the hands of one party or a few commissioners could seriously endanger First Amendment rights.

Democrat FPPC Commissioner Under Fire for Undisclosed Meeting with Lawyer

A Democrat commissioner on California's analog of the FEC, the Fair Political Practices Commission (FPPC), is under scrutiny for meeting with an outside attorney directly interested in a matter before the FPPC:

A commissioner of California’s political watchdog agency met secretly with a lawyer working for Senate Democrats while advocating for changes to campaign finance law that would help retain the Democrat’s supermajority in the state Senate, The Bee has learned. 

Commissioner Brian Hatch, a Democrat and former lobbyist for the firefighters union, met privately, talked on the phone and exchanged text messages with the lawyer as the Fair Political Practices Commission considered flipping a longstanding legal interpretation of campaign finance law to favor Sen. Josh Newman in the fight to retain his seat. . . .

While FPPC commissioners are prohibited from speaking privately with people involved in enforcement cases, other situations allow more flexibility. Commissioners are allowed to meet or discuss the agency’s legal opinion on state law and rule-making decisions, but such one-on-one meetings are unusual and are supposed to be disclosed. Hatch did not disclose his conversations. . . .  

Thomas Hiltachk, a political lawyer who has appeared before the FPPC for decades, also said such private contacts are unusual. . . . Hiltachk said he’s met with FPPC commissioners over the years after they are appointed to get to know them. He hasn’t tried to lobby them on issues before the commission, he said. 

While Hatch's discussions with the outside lawyer appear to be legal under FPPC rules, they should have been disclosed.  Failure to disclose these interactions has the potential to undermine the legitimacy of the FPPC's decision-making process, just as the partisan activities and statements of the FEC commissioners risk undermining the FEC's work.

FEC Commissioner Weintraub Abuses Power to Attack Trump

RNLA Executive Director Michael Thielen wrote today about Democrat FEC Commissioner Ellen Weintraub's latest in a series of partisan attacks on President Trump:

Weintraub’s campaign against the President, using FEC time and resources, has been going on for months.  Weintraub wrote a letter back in May, after Trump suggested there was vote fraud in the 2016 election and that Kelly Ayotte’s losing bid in New Hampshire may have been due to election meddling, demanding Trump explain himself and offer proof for his claims. . . . 

Most recently, Weintraub has begun actively lobbying her colleagues on the FEC to consider involving themselves in a probe of “the reported attempts of Russia to influence the 2016 U.S. presidential election.”  Weintraub declared in a bid to her fellow commissioners: “Every part of our government that has jurisdiction over these issues must exercise every scrap of its jurisdiction as fully as it can. . . . The FEC must find out the facts of what happened during the 2016 U.S. presidential election and move swiftly and firmly to fix any problems we find.” 

Weintraub then requests that the FEC receive briefings on other agencies’ investigations, examine its enforcement practices, assure the public that FEC databases are secure, begin rule-making regarding corporate spending in politics, consider other rulemaking, and consider making recommendation to Congress. . . . The rest of the memo makes clear that Weintraub views this as only another front to attack the Trump Administration, in hopes of finding some smoking Russian gun to bring down President Trump.  If the FEC acted as Weintraub demands, it could vastly, unilaterally expand its jurisdiction and infringe on the jurisdiction of other federal agencies, Congress, and the states. . . . 

There is no doubt Weintraub in her vocal anti-Trump fanaticism is overstepping her mandate as an FEC commissioner. . . . Now, Weintraub threatens to make it nearly impossible for the FEC to remain impartial on any matter regarding President Trump. . . . As Republican FEC Commissioner Lee Goodman has said: “We are a law enforcement agency at the end of the day, and we must be strictly impartial and neutral in how we approach cases, not just in actuality but in the appearance of how we conduct ourselves.”

The RNLA will follow Commissioner Weintraub's actions and highlight future examples of partisanship here and in our weekly Daily Caller column.

Former FEC Chairman Brad Smith: FEC's Weintraub Should Resign

Former FEC Chairman Brad Smith wrote today that it is time for FEC Commissioner Ellen Weintraub to resign, because her political attacks against President Trump and White House Counsel Don McGahn are jeopardizing the FEC's ability to perform its legitimate function:

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . .

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard. 

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

Prof. Smith detailed Weintraub's recent partisan excesses: how she used her FEC position and FEC resources to engage in partisan activity, namely criticizing President Trump; how she is engaged in a constant campaign of personal attacks against former FEC Commissioner and current White House Counsel Don McGahn; and how she seeks to expand the FEC's -- and therefore her -- jurisdiction to every aspect of federal elections.  Further, Prof. Smith details how just a few weeks ago, Weintraub's public comments may have jeopardized her impartiality on any matter regarding President Trump and his re-election and violated restrictions on FEC employees:

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” . . . First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? . . . Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. . . . Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations.

We will continue to follow Commissioner Weintraub's partisan excesses and hope that she resigns soon so that a commissioner who takes his or her position at the FEC seriously can be appointed to replace her.

FOIA Request Seeks Information on AltFEC and Trump Resistance at FEC

Today, America's Foundation for Life and Liberty (AFLL), of which RNLA Vice President for Election Education David Warrington is Chairman and Lead Counsel, filed a FOIA request with the FEC for records related to the altFEC Twitter account:

“Our FOIA request will seek all records related to FEC staff and commissioners running an anti-Trump Administration effort out of the offices of the FEC,” said America’s Foundation for Law and Liberty Executive Director Elizabeth Tate. 

“Over the past few weeks, it has become apparent government employees at the FEC are working on government time to undermine the Trump administration, primarily through a Twitter account <altFEC>. Based on the timing of tweets, it is quite obvious FEC employees are performing their resistance campaign on government time and perhaps using government resources,” Tate continued.  “The people behind this effort are free to express their opinions on their own time and on their own dime, but they should not be using Government time and resources to further a partisan political agenda.” 

“We find this effort by so-called campaign finance reformers at the FEC hypocritical, especially since their leaders, Commissioners Ellen Weintraub and former Commissioner Ann Ravel, have long sought prohibitions on anonymous online political speech under the guise of advocating for transparency. If these ‘reformers’ want Americans to forfeit their freedom of speech for transparency, then let’s find out what has been going on at the FEC. The American people have a right to know if their tax dollars are being spent to subsidize the political activities of these partisans.”

A copy of the full FOIA request is here.  We've covered the problem of partisanship at the FEC, by both Democratic commissioners and staff, frequently in the past few weeks: 

Partisanship and Hypocrisy on Free Speech by FEC Democrats Should Concern Citizens

Left Reveals View of FEC as Tool to Oppose Republicans 

FEC Commissioner Weintraub: Using FEC Resources to Engage in Partisan Activity 

FEC Commissioner Weintraub: Hypocrite on Speech Seeks Control Over All Aspects of Federal Elections

We hope that AFLL's FOIA request will yield some information on whether FEC staff is using government resources to engage in partisan activity.  Of course, agencies provide as little as they can in response to FOIA requests as possible, but at the very least, perhaps this FOIA request will deter such activity in the future.

Ravel Misunderstood FEC's Role and Attacked GOP Commissioners on Exit

Former FEC Commissioner Ann Ravel left the FEC last week in a storm of her usual rhetoric about the FEC's dysfunction and the woes of entities spending money to engage in political speech.  But as RNLA member Paul Jossey points out, she never understood the role of the FEC:

She misunderstood both her and the commission’s role. And when she couldn’t mold the FEC into a federal version of the state agency she previously headed, she lashed out in ways that did little but aid her self-promotion and increase tension. . . .  

In Washington, Ravel tried to remake the FEC into . . . [a] bureaucrat-dominated colossal that overreached, bullied, and pursued “social goals” in the name of democratic integrity. . . . Congress created the FEC shortly after Watergate with six commissioners and barred more than three commissioners from one political party. It rightly worried about partisan control over an agency that would regulate political campaigns.  Without the FEC’s even format, partisan agendas can run wild. . . .  

But Ravel bitterly complained the format enabled intransigent Republican commissioners to cause gridlock. She cited statistics showing increasing ties on enforcement matters. Republicans slice the numbers differently. Regardless, tie votes aren’t nefarious attempts to skirt the agency’s mission. They represent the agency working as planned where actions must be taken on a bipartisan basis. . . .  

Ravel’s complaint about colleagues “thwarting” and “obstructing” the law to produce these ties is especially rich. She blatantly ignored the FEC’s own internet-speech regulations because she didn’t like them. . . . The commission’s lack of control irks Ravel who sees cyberspace as one more place the government can lord over. Bloggers in California became YouTube videos at the FEC.

RNLA member Steve Klein also wrote about Ravel's speech on leaving the agency, in which she attacked her Republican colleagues and continued to misrepresent statements by former FEC Commissioner and current White House Counsel Don McGahn:

Ravel, a Democratic appointee, comes off a tumultuous time at the FEC, a tumult for which she takes no responsibility. In her opening remarks this afternoon, Ravel argued that the ethical duties of attorneys were one reason the Republican commissioners—with whom she quit honestly engaging only “about a week” after arriving at the FEC—were obligated to agree with her about campaign finance law and enforcement. 

More ominously, she charged these commissioners did not “uphold the highest professional and ethical values” as attorneys, claiming Republican commissioners cited cases or law in their arguments that “don’t exist” or stood for propositions different than those claimed. “They don’t cite the part that’s actually applicable to the matter,” she fumed. Not offering a single example of this, Ravel instead moved on to state [a selective quote from then-Commissioner McGahn, misrepresenting his correct position].

Unfortunately, we have not heard the last from former Commissioner Ravel, but at least she no longer has the power to vote to regulate political speech based on her policy ideals instead of on campaign finance law and FEC policy.  We can hope that the next Democrat FEC commissioner better understands the role of the agency in enforcing existing law and his or her role as a commissioner in working with, and not attacking, his or her colleagues.

Partisanship and Hypocrisy on Free Speech by FEC Democrats Should Concern Citizens

RNLA Vice President for Communications Ron Hicks wrote about the dangers of partisanship and hypocrisy regarding free speech from the Democrats at the FEC:

In the name of democracy and equal speech, campaign finance “reformers” demand broad power for the FEC to regulate the political speech of average citizens, organizations, and corporations, requiring disclosure, repeated filings, and compliance with complicated regulations (that not even the FEC understands), while asserting freedom and anonymity rights for their own political speech. This hypocrisy has been demonstrated numerous times in recent months. . . .  

Part of this desire to investigate and regulate political speech on the Internet is to defeat anonymity through requiring registration and disclosure with the FEC. This would be especially hypocritical if Center for Public Integrity’s supposition is true and former Commissioner Ravel is involved with the altFEC account. . . . 

Strong partisanship on the part of FEC Democrats shakes the public’s confidence that the FEC will apply the law equally without regard to partisan or policy goals. And when the “reform” community within and without the FEC applies different standards for speech and anonymity to themselves and others, it not only further de-legitimizes the agency but also reveals the “reform” movement’s goal: to silence speakers that disagree with them through actual or threatened government regulation.

In the end, the question is whether Americans should be concerned about the strong partisanship of this FEC’s Democrats. In my opinion, the answer should be “yes,” because the reformers’ right to speak in the name of democracy should not be greater than the right of those in the democracy who disagree with them.  

Last week, we covered this partisanship and hypocrisy in detail, as Ron does in his op-ed:

Left Reveals View of FEC as Tool to Oppose Republicans 

FEC Commissioner Weintraub: Using FEC Resources to Engage in Partisan Activity 

FEC Commissioner Weintraub: Hypocrite on Speech Seeks Control Over All Aspects of Federal Elections

We hope that the Democrat FEC commissioners, including whomever is selected to replace former Commissioner Ann Ravel, will reduce their strident partisanship and apply consistent standards to restore public confidence in the FEC's ability to interpret and apply the law fairly. 

FEC Commissioner Weintraub: Hypocrite on Speech Seeks Control Over All Aspects of Federal Elections

Check out yesterday's post for the background to this post: a request for an ethics investigation into whether FEC Commissioner Ellen Weintraub misused FEC resources in criticizing President Trump's claims about vote fraud swinging the close 2016 New Hampshire senatorial election.

Commissioner Weintraub responded that she would "not be silenced," inventing a justification for her earlier statement by claiming that any fraud would involve spending money and implicate campaign finance rules, while also adopting an expansive view of her "official duties as a federal election official" that involves commenting on "any aspect of the integrity of federal elections in the United States."

There are two primary problems with Commissioner Weintraub's response.  First, her claims unilaterally and massively expanded the power and jurisdiction of the FEC to anything having to do with federal elections.  Not only does this contravene the law, which gives the FEC jurisdiction to administer and enforce the Federal Election Campaign Act, but it contradicts the FEC's own guidance, which maintains that many issues related to federal elections are outside the FEC's jurisdiction (it is worth noting that this document was originally issued when Commissioner Weintraub was already on the FEC).  So not only does Commissioner Weintraub want to ignore the law with regard to the applicability and enforcement of campaign finance rules to advance the policy goals favored by her but she also wants to disregard the statutory grant of authority to the FEC to interpret its jurisdiction as she sees fit.

Second, her free speech claim would be amusingly ironic if it were not so incorrect.  As an individual citizen, Ellen Weintraub has the same speech rights as any other citizens, fully protected by the First Amendment.  But as a government employee and official, her speech is limited by many laws and rules when she is using official time and resources. She has free speech but not on FEC letterhead to feign imprimatur of the agency.  Her attack on President Trump's statement had nothing to do with a legitimate investigation or action by the agency.   More to the point, she claims free speech to use government resources to carry on her personal propaganda against the President.  But she consistently votes and advocates to regulate average Americans, even major news organizations like Fox News, to prevent them from exercising their rights to free speech. This is hypocrisy of the highest order.

Those in the election, non-profit, and political communities rightly fear an unlawful FEC, if it operated as Commissioner Weintraub would direct.

FEC Commissioner Weintraub: Using FEC Resources to Engage in Partisan Activity

Former FEC Commissioner Ann Ravel's ally at the FEC, Ellen Weintraub, has also been active in demonstrating the Democrat FEC commissioners' political bias.  After President Trump's call for an investigation of voter fraud last month and his statements about fraud contributing to the defeat of Sen. Kelly Ayotte in New Hampshire, Commissioner Weintraub issued an official statement from her office as Commissioner questioning the statement and calling upon President Trump to share evidence of the claim.

The problem is that the FEC does not have jurisdiction over vote fraud, election administration, or federal elections broadly.  The FEC's jurisdiction is campaign finance, yet Commissioner Weintraub used official FEC resources to question the President's statements on fraud.  In a complaint filed yesterday with the FEC's Inspector General, Cause of Action called for an investigation (internal citations omitted):

CoA Institute requests that you open an investigation to determine whether Ellen Weintraub, a Commissioner of the Federal Election Commission (“FEC”), violated applicable ethics regulations when she used government property and official time to call on President Trump to provide evidence of his claims of voter fraud in New Hampshire and then continued to promote her statement after it was issued. We also urge you to determine whether it is appropriate for the FEC website to continue to host Commissioner Weintraub’s statement. . . . 

When subsequently asked her about her statement, Commissioner Weintraub answered that “[a]s a commissioner on the Federal Election Commission, I fight every day to build the faith of the American people in our elections. . . . It’s absolutely my right to raise public questions about another public official’s statements about the integrity of our elections.” In October 2016, however, Commissioner Weintraub took the exact opposite stance, stating through her Twitter account that matters of voter fraud were beyond FEC jurisdiction. Specifically, in response to the question “What is the FEC doing abt [sic] recent reports of voter fraud?” Commissioner Weintraub replied, “That’s outside the @FEC’s jurisdiction. We do campaign finance *only*. The elections themselves are handled by the states.”

OGE regulations regarding the use of government property provide that “[a]n employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.” . . . Pursuant to these rules, Commissioner Weintraub may only use FEC property and act in her official capacity for purposes that advance the FEC mission as authorized by law. . . . In compliance with its authorizing statute, the FEC website describes its jurisdiction as being limited to “the financing of campaigns for the U.S. House, the U.S. Senate, the Presidency and the Vice Presidency. . . .” As evidenced by her tweet in October 2016, Commissioner Weintraub was and is aware of the boundaries of the FEC’s authority.

Despite her knowledge of the FEC’s limited jurisdiction, the two subjects discussed in Commissioner Weintraub’s February 2017 statement — investigating alleged voter fraud and New Hampshire felony criminal violations — go beyond that jurisdiction. In addition, the statement was issued on FEC letterhead and remains, as of the time of this letter, posted on the FEC website. Commissioner Weintraub also used her official time and status to prepare the statement, direct her staff to format and publish the statement, and promote the statement on CNN and NPR. For these reasons, Commissioner Weintraub’s use of government property to issue the statement and the time she took to defend that statement in national media outlets are violations of the ethics regulations to which she is subject.

Though Commissioner Ravel has left the FEC, Commissioner Weintraub has shown no interest in leaving.  This is unfortunate, as her recent actions further de-legitimize and politicize the agency.  Check out tomorrow's post for information on Commissioner Weintraub's response.

Left Reveals View of FEC as Tool to Oppose Republicans

Over the long weekend, Democrat FEC Commissioner Ann Ravel resigned from the FEC.  We've catalogued Commissioner Ravel's partisanship, passion for regulating internet speech, questioning of citizens' loyalty based on their employer, charges of dysfunction aimed at Republican commissioners following the law, inconsistent application of the law, and many other questionable statements and actions during her tenure at the FEC.  

Of course, in her letter of resignation to President Trump and a 24-page exit report on "Dysfunction and Deadlock," she repeated the same trite campaign finance "reform" rhetoric perpetuated by the left despite being disproved by recent history:

Ravel’s resignation letter is filled with the same sort of tired Democratic rhetoric on campaign finance, demanding the overturning of Citizens United, pushing for expanded public (i.e., taxpayer) financing of political campaigns, and decrying the evils of “dark money.”  

Yet President Trump showed the complete intellectual bankruptcy of the campaign-finance “reform” movement in his stunning presidential-election victory. According to the FEC’s own data, among large donors ($2,000+), Hillary Clinton out-raised Trump $175 million to $27 million, a ratio of 6.5 to 1. Despite this, and the almost unanimous support she enjoyed from our media and cultural elites, Clinton couldn’t defeat Trump. Furthermore, Bernie Sanders, an eccentric and aging socialist with no establishment backing, came close to beating Hillary in the Democratic primary despite being outspent among those same $2,000+ donors by a ratio of more than 50 to 1. . . . 

The 2016 election was, for anyone who had eyes to see it, the most dramatic repudiation possible of the false notion that big donors determine the fate of our candidates or our politics. Given such facts, Ravel’s cri de coeur is more unintentional comedy than serious political analysis. But the media refuse to report it that way because to do so would be to repudiate their Democratic party allies, while casting a favorable light on the candidacy of Donald Trump, whom they loathe.​ 

But to keep the anti-Trump "reformers" from being too distraught about Ravel's departure, Ravel and her allies at the FEC have the strongly partisan, "resistance" altFEC Twitter feed, which, according to Ravel's friends at the Center for Public Integrity, "offers decidedly Ravel-esque, and often anti-Trump, critiques of the agency."  Recent tweets have been illuminating and have confirmed what many in the conservative community have long known and feared: that Democrats see "effective" speech regulation as a tool to oppose and hurt Republicans.

Even with the exit of Commissioner Ravel, no Republican or conservative speaker, especially those who must wade through the bureaucratic nightmare of an FEC complaint, can trust the FEC to act impartially while Democratic commissioners and "reform"-minded FEC staff sponsor explicitly anti-Republican messages and use campaign finance regulation as a tool to disadvantage Republicans.  Look for a post tomorrow on Ann Ravel's friend and ally at the FEC, Commissioner Ellen Weintraub.