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.  

Weintraub Uses Russian Meddling As Excuse To Restrict Internet Speech

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about how Democratic FEC Commissioner Ellen Weintraub, like other Democrats and liberals, is using the alleged interference of Russia in last year's election as an excuse to regulate political speech.  Mr. Warrington explained how Commissioner Weintraub's statements in a recent FEC meeting showed her political savvy and intent to regulate internet speech:

Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent.  Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal.  She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet. 

That was a big mistake, substantively and politically. . . . Weintraub is more slippery than Ravel.  Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else.  For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application.  That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer. . . . But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions. . . .

Unfortunately, while foreign influence is the excuse for the calls for increased regulation, the speech that will actually be regulated is political speech by American citizens: 

Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads.  Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical.  Foreign paid ads already are prohibited by law.  Adding a disclaimer requirement for ads that already are illegal would not be effective.  Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web. 

Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online.  YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.

Mr. Warrington concluded by pointing out that if the result of any foreign advertisements is a restriction of free speech, the Russians would be pleased.  If we truly want to prevent foreign powers and actors from improper influence in our elections, we need to zealously protect free speech.

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.

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.

FEC Commissioner Ann Ravel on Disloyal Americans – A Gilda Radner Moment

People over the age of 40 probably recall Gilda Radner’s character Miss Emily Litella on SNL.  She would harangue and spout off about a misperceived problem until her mistaken premise was corrected at which point she would abruptly squeal, “Never mind.”  She once editorialized against the harm to children due to violins on television, until corrected that the issue was violence on television.  Never mind.

Well, Ann Ravel had a Gilda Radner moment last week at the FEC.  She harangued against the right of American citizens to associate in PACs sponsored by their employers if those employers are U.S. companies owned by foreign companies.  Chrysler and Ben & Jerry’s are two examples.  She argued that American citizens who work for U.S. companies owned by foreign companies are loyal first and foremost to foreign interests and cannot be trusted to associate and make contributions through employer-sponsored PACs.  Based upon this rationale, she moved the Commission to reverse a 2006 advisory opinion acknowledging the First Amendment right of American citizens to so associate.

Ravel’s proposal presumed that American citizens who work for Chrysler or Ben & Jerry’s are inherently disloyal Americans.  When confronted with this mistaken premise, she at first doubled down, but 55 minutes later, after it sunk in, she changed her mind.  Changing her tune, she said that perhaps she had not portrayed her concern correctly, that perhaps American citizens who work for Chrysler could be trusted, and the FEC simply needed greater assurances that Chrysler employees were indeed exercising America-first loyalties.  It ended with a “never mind” moment.

Ravel for weeks had demagogued a false premise.  And she completely missed that the advisory opinion she assailed, along with a dozen or more that preceded it and post-dated it, indeed set forth an elaborate set of guardrails to ensure that Americans associating in corporate-sponsored PACs make their political decisions free from foreign national participation or influence.  But here she was engaged in a thoughtless effort to completely jettison four decades of careful thinking on those appropriate guardrails as well as the First Amendment rights of American citizens. 

We doubt this was well-considered by a commissioner more interested in grabbing headlines than understanding the meaning or consequences, or constitutionality, of her regulatory actions.  At least public debate by Republican commissioners corrected her misconception.        

Excerpts from the September 15 FEC Meeting

RAVEL:

It's about the corporate sponsored PAC and there's no question that they as Americans or citizens with foreigners with green cards or all of the others, can participate in the political process. And that's what we want. It's the question of whether or not they can be influenced as Commissioner Weintraub talked about but also there is some evidence. There is a recent study put out and I believe one of the authors is from the University of Arizona. I can provide it to you offline where say said they found that political giving and political activity by employees is very influenced by CEOs of corporations. So there is evidence of that. And then just if you look at corporate structure as I referred to before. The subsidiaries, the employees they are all working for the corporation. The fact that they're a subsidiary. It's not an entity unto it. They are loyal to and must do what is in the best interest or perceived best interest by the CEOs of that corporation. That's the difficulty that we have in formulating some kind of a rule here honestly and why we have to look at what we have set forth in the AO as being incomplete because it doesn't actually address that problem.

GOODMAN

I take it, so that's why I said you're questioning their loyalty and whether their loyalty is an American interest or it's to Fiat in Italy.

RAVEL

I think their loyalty is to the corporation. Through the senior leadership, the CEO and the senior leadership which happens to be a different foreign corporation. That's the rule of corporate law. That is. I'm not saying anything about loyalty per se of a particular employee.

55 Minutes Later

PETERSEN

If we have totally different ideas of what a foreign national is, if we believe that, by that, you mean not from a foreign national, that no foreign national is involved in the decision and that any monies were from, you know, domestically-generated revenue, if that's what we're thinking, but you're thinking that if anything were to come from a corporation that has foreign shareholders or a significant number of foreign shareholders, then even that becomes a difficult hill to climb. So, what I'm saying is that I don't want to foreclose the possibility of us trying to find some common ground, because I think that our interests in enforcing the ban are there, but I think that there may need to be a little bit more discussion or legwork to figure out, are there some first principles that we can start from that would allow a potential compromise to be reached.

RAVEL

I think you do, and maybe I portrayed that in a way that made you think that, but what I was saying was in the AO, in the [TransCanada] AO, those constraints were insufficient…. They were insufficient to ensure that there really isn't foreign influence, and that's the concern. I mean, if we were to devise some scheme that comes up, for an SSF that comes up in the course of the rule-making where we would get information from people and be able to consider ways to have that clear assurance, despite the corporate structure, that we could put in, and I don't know that certification would be the thing that I would feel comfortable with necessarily, but some way that would enable us to even enforce that rule, I think what we have now, we don't have the capability of enforcing the prohibition on foreign nationals.

PETERSEN

Okay, because the concern I had had about the earlier comments was the statement that one cannot help, even if someone who's an American citizen and who's on the board of directors and is in charge of making decisions for, um, a domestic subsidiaries pack or independent expenditure effort, if the notion is that they can't help but be influenced by the fact that I've met the foreign nationals who own this organization, and therefore, just the way in which the corporation is organized, you can't help but be influenced by that foreign source, that's what I thought was being said earlier, in which case that would have seemed to exclude all domestic subsidiaries.

RAVEL

That was not my intention.

That was Ann Ravel’s Gilda Radner moment.  Never mind!  All that demagoguery for months about rescinding one advisory opinion that permitted an American company (owned by a foreign company) to sponsor a PAC for its American employees because the employees would be loyal first and foremost to the foreign owner in an instant disappeared with a simple “That was not my intention” after all.  Perhaps Ravel should think through her proposals before she moves to abandon decades of law.  The term half-baked comes to mind.  Surely somebody thought of the problems with her proposal years ago.  But thoughtfulness has never constrained Ravel, who has been more eager to grab superficial headlines than understand the law, consequences, or constitutionality of her regulatory actions.    

Commissioner Weintraub had her moment of backtracking too.  In March she published an op/ed inthe New York Times setting forth an all-new legal rule prohibiting all publicly-traded U.S. corporations from exercising their First Amendment right to make independent expenditures or contribute to PACs that do.  She threatened all U.S. corporations and their attorneys with findings of legal violations, and she reiterated her threats at the beginning of the FEC’s meeting.  But when challenged with the correctness of her op/ed, she backtracked:  “What I wrote in the New York Times was intentionally provocative. It was intended to stimulate discussion and I hope that it has but I am not saying today that that is the only thing that I would consider or is there aren't many other ideas that I think would be well worth entertaining….”

So much for the credibility of two Democrat Commissioners.  They change their tunes to say whatever it takes in the moment to advance their ulterior motive – reverse the decision their agency lost in Citizens United v. FEC and take away corporate free speech rights in America.  Democrats clearly view the FEC not just as a First Amendment free zone but a credibility free zone.  

FEC Democrats Vote in Favor of Regulating the Internet...Again

We recently discussed how the three Democrats on the FEC voted to ignore the settled exemption from campaign finance regulations granted to internet communications in the complaint against Foundation for a Secure and Prosperous America:

Democratic Federal Election Commissioner Ann Ravel moved this week to deny a conservative nonprofit group legal protections that exempt most online political communications from federal political spending limits and disclosure laws. 

Experts say the move is an attempt to undermine the “internet exemption,” as the provision is known, without going through normal legislative and regulatory processes. In effect, they say, Ravel was denying legal protections to the group simply because she disagrees that those protections should exist.  

The FEC Democrats voted against applying the internet exemption in yet another complaint regarding internet videos:

The commission also split 3-3 in a recent case that asked if the Internet exemption also exempts a webcast of a discussion with political candidates that provides a link to contribute to candidates. The Republicans said it was exempt; the Democrats disagreed.  

Goodman, a Republican, said the decisions are likely to have a chilling effect on free speech. 

“Political speakers who are careful about what they do, and who are advised by lawyers, may be chilled from communicating on the Internet, in the light of a 3-3 divide on the commission,” he said. “There is definitely a chilling effect.”

As the FEC is currently constituted, the three Republican commissioners protect against the Democrat commissioners ignoring the law to regulate speech on the internet, but there are proposals to change the composition of the FEC:

Goodman said while the 3-3 split on the commission stalls any Internet regulatory push, he warned that if legislation in Congress passes to make the body a five-person body, it could give the Democrats the majority they need. 

“If the commission were to be reconstituted, I believe we’re looking at full-blown regulation of political speech on the Internet,” he warned.

We thank Chairman Petersen and Commissioners Goodman and Hunter for standing up for the rule of law and protecting free speech on the internet.

FEC Democrats Continue to Ignore the First Amendment

Three Democrat Commissioners are continuing their relentless effort to regulate and impede free speech on the Internet.  Despite the existence of a clear set of regulations adopted unanimously by the Commission in 2006, the three Democrat Commissioners have voted as a bloc twice in the past weeks to countermand the clear regulations.  This is further proof that Democrat Commissioners enforce only the laws they like on any given day, depending on the regulatory outcome they desire, and with respect to the respondents they prefer (or don't prefer).  

In the first vote, three Democrat Commissioners ignored a clear law that exempts Internet communications from regulation as public communications and in-kind contributions.  In 2006, the Commission decided, as a matter of policy, to let citizens speak freely on the Internet without worrying about the federal government treating their low-cost communications as in-kind contributions to candidates.  The law couldn't be clearer on this point.  But last month Commissioner-for-Life Ellen Weintraub, Commissioner I-Don't-Apply-The-First-Amendment Ann Ravel, and "Independent" Commissioner Steven Walther voted to countermand clear law.  They voted to treat a webcast as an in-kind contribution to a candidate.  The relevant Statement of three Republican Commissioners can be found here.