The government agency tasked with investigating campaign finance violations is on its way to intentionally making that very obligation more difficult to accomplish.
The Federal Election Commission is a notoriously deadlocked agency that has nonetheless taken some significant enforcement actions in recent years. In 2019, for instance, the FEC issued record fines in relation to a Jeb Bush super PAC’s acceptance of $1.3 million from a Chinese-owned corporation. Last year, the agency fined Marathon Petroleum Company for giving $1 million to Republican party campaign committees while the fossil fuel company had existing contracts with the federal government.
Now FEC Commissioner Allen Dickerson, who was appointed by President Donald Trump, is pushing a rules change that would encumber the agency’s ability to investigate such violations. The proposal would require the FEC’s Office of General Counsel to get explicit approval from the commissioners for any investigative activity, no matter how big or small.
As it stands, the OGC must come to the commissioners with its initial findings and get permission to move forward with an investigation. The new rule would require investigators to submit a comprehensive investigation plan alongside their initial findings — and to return to the commissioners if they want to make any changes once the investigation is underway, even for something as simple as making a phone call. Four out of the FEC’s six commissioners would have to approve any “expansion” of the investigation.
The proposal, if approved, will result in the commissioners “micromanaging things” that have long been in the OGC’s purview, said Stephen Spaulding, vice president of policy and external affairs at Common Cause, who served as a special counsel to a former Democratic FEC commissioner from May 2016 to May 2017. “It will slow investigations down and ultimately leaves the law unenforced, if they’re tied up in having meetings about whether the nonpartisan attorneys in the Office of General Counsel can even bring in another witness.”
The FEC was scheduled to discuss the proposal at a September 14 meeting, but bumped it from the agenda two days prior. The commissioners had previously postponed the discussion from a late August meeting. The FEC did not respond to a request for comment.
The proposal would further hamstring an agency that already runs an opaque and slow operation, often taking years to resolve cases and disclosing little to no information to the public about what it’s working on. The agency recently reported that it had “closed 245 enforcement cases in an average of 811 days,” noting that just 55 cases were closed within 15 months. In April, the FEC passed a rule — also introduced by Dickerson — that prohibits the commission’s press office from confirming or denying the existence of campaign finance violation complaints.
The FEC, whose appointed commissioners are split evenly on party lines, is subject to exogenous political pressures too. Republicans, who have been working for years to dismantle campaign finance laws, are currently pursuing a court case in Ohio that would weaken limits on how much party campaign committees can spend on their respective candidates, a change that would allow wealthy donors to deepen their influence on elections. In Congress, the Committee on House Administration is set to hold an oversight hearing on the FEC later this month, the latest in a series of highly politicized oversight hearings since Republicans retook control of the House this year. Democrats on the committee, meanwhile, have already come out in opposition to Dickerson’s proposal.
The consequence of partisan disagreement over the FEC’s function is that the commission often fails to pursue bigger ticket cases, said Spaulding. “Unfortunately, on a lot of major, big issues,” he said, “including issues where the Office of General Counsel has recommended taking action, it’s broken down on partisan lines, and in many cases — not in all, to be clear — but in many cases, it’s broken down on a partisan basis.”
In a majority of cases, the FEC’s six commissioners vote on investigations along party lines. A 3-3 vote bars the OGC from further work on a case, though it also gives complainants a pathway to sue the FEC and force it to take action. A 4-2 vote, meanwhile, hinders that possibility.
“The FEC’s anti-enforcement commissioners already improperly crush most worthy FEC complaints at the very beginning of the process — the initial vote on whether there is ‘reason to believe’ a violation has occurred,” said Tom Moore, a senior fellow at the Center for American Progress and a former chief of staff to Commissioner Ellen L. Weintraub from 2015 to 2023.
Last year, Chair Dara Lindenbaum, a Democrat, was confirmed in a 54-38 Senate vote. At the time of her nomination, she signaled an effort to make the agency run on a more bipartisan basis. Though she has overwhelmingly voted with her Democratic colleagues, she has at times joined the Republicans on the commission — including to approve the April rule change barring public confirmations of FEC complaints, which passed on a 4-2 vote.
At the time, she said that her vote was based on a rule that states that complaints cannot be made public without written consent of the parties involved or until the case is closed. She also said she’s open to modifying the rule itself and to consider others in the pursuit of greater transparency. Good governance groups noted that the regulation Lindenbaum cited deals with the publication of a complaint, not the fact of its filing. “If the FEC is forced into silence on even confirming or denying the receipt of such complaints, that silence will likely cast a pall over the credibility of public discussions and raise suspicion whether the Commission is even doing its job,” wrote Craig Holman of Public Citizen.
Lindenbaum has also voted with the commission’s three Republicans a handful of times to reject the OGC’s efforts to proceed with an investigation.
“There are only 8 out of hundreds of cases in which I have joined the Republicans in a 4-2 vote,” Lindenbaum told The Intercept in a statement. “In some instances, I weigh the evidence differently than my democratic colleagues. In others, it’s the law.”
For instance, Lindenbaum once made the decisive vote to close an investigation into Iowa Values, a dark-money group accused of spending thousands of dollars to support Republican Sen. Joni Ernst’s 2020 reelection campaign. Before Lindenbaum joined her Republican colleagues in a vote to shut down the investigation, the commission had previously deadlocked on the matter multiple times.
In March, Lindenbaum again voted with Republicans to reject an investigation into the Patriots of America PAC, which was accused of purposefully undervaluing a $25,000 NASCAR sponsorship on a race car decal to avoid having to report the expenditure to the FEC. The PAC’s treasurer is Dan Backer, a Trump-supporting legal activist who won numerous court cases — including against the FEC itself — that loosened campaign finance restrictions.
The stakes of such votes are relevant in the lead up to the 2024 election. The FEC received at least 43 campaign finance complaints involving Trump, the Daily Beast reported last year. The Daily Beast deemed 15 of those complaints to be flimsy, but found that of the remaining 28, the OGC determined that 22 merited further investigation. And yet, the Republican commissioners blocked every single probe, the agency never able to secure four votes in favor of deeper inquiry.
One recent Trump-adjacent complaint involved 45Committee, a tax-exempt nonprofit that was accused of instead operating as a political committee supporting Trump. The organization, whose fundraising was led by co-owner of the Chicago Cubs, Todd Ricketts, spent more than $21 million during the final month of the 2016 election — while receiving more than $46 million from an exclusive group of wealthy megadonors. (Trump later nominated Ricketts for deputy secretary of commerce; he eventually withdrew his nomination citing an inability to divest his financial holdings and then went on to serve as the finance chair for the Republican National Committee.)
The FEC’s Republican commissioners voted against moving forward with an investigation into the 45Committee. In a memo, Weintraub and her fellow Democratic Commissioner Shana Broussard highlighted the potential consequences. “More than a billion dollars of dark money has flooded into our elections since Citizens United. The Commission’s well-known failure to pursue investigations into dark money groups like 45Committee is one of the reasons why,” they wrote.
Dickerson’s proposal would make it even harder for any case to get past the commission, Moore said. “Each requirement would constitute a new kill switch the FEC’s anti-enforcement commissioners could pull to knock off even the pitifully few matters that get past the initial stages.”
The FEC is subject to oversight by the Committee on House Administration, which is holding a hearing on the agency on September 20.
Among the committee’s members is Rep. Mike Carey, R-Ohio, who played a small role in a major corruption scandal in his home state that drew attention from the Department of Justice and the FEC. Before he was elected to Congress, Carey was the lobbyist for an energy company that gave $100,000 to a dark-money group that was backing Republicans who would help elect state Rep. Larry Householder as House speaker. In June, Householder was sentenced to 20 years in prison for his role in a racketeering conspiracy to receive nearly $61 million in bribes in exchange for his sponsorship of a $1 billion nuclear energy bailout. (Carey’s spokesperson declined to comment on the donation to a local newspaper last year, and he had previously said he was shocked by Householder’s arrest.)
This past summer, the FEC closed its own investigation into actors on both sides of the fracas in Ohio, those pushing for and against Householder. The three Republican commissioners argued that the OGC’s investigation “ballooned … far beyond anticipated bounds,” complaining that it “took almost two years,” and that enforcement would have been “unusually difficult” because the commission could be vulnerable to costly litigation if the case went to court.
The committee’s Republicans have not publicized their plans for the upcoming hearing, and Committee Chair Rep. Bryan Steil, R-Wis., did not respond to The Intercept’s questions about it. Carey and Steil also did not respond to questions about Dickerson’s recent proposal.
Democrats on the committee, meanwhile, have strongly opposed it. Committee ranking member Rep. Joe Morelle, D-N.Y., said it “could impose needless and superfluous work on OGC, delaying their timely review of enforcement matters and depriving the American public of meaningful enforcement of our nation’s campaign finance laws.”
Rep. Derek Kilmer, D-Wash., told The Intercept that he supports efforts to reform the FEC and will continue to do so. “But Commissioner Dickerson’s proposal could worsen the same issues it’s intended to solve — creating new bottlenecks and potentially making it harder for the FEC to carry out its core mission.”
Update: September 14, 2023
This article was updated to note that the FEC postponed its discussion of the proposed rule.