Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever
Here is the inside story of how Democrats, after a decade of defeats at the nation’s top campaign watchdog, are trying to enforce election laws in part by losing on purpose in federal court.
A funny thing keeps happening in federal court. An arm of the government has not been showing up to defend itself against lawsuits. Some judges appear confused, and less than amused, by the unusual absences.“It is necessary for the agency to pay attention to this case,” one exasperated district court judge wrote in March. Yet when the judge set another court date, in May, the agency in question, the Federal Election Commission, didn’t show up again.
It was not an accident.
For more than a decade, Democrats seeking more robust enforcement of election laws and transparency measures have been routinely routed at the F.E.C., the nation’s top campaign watchdog agency.
Now, the Democratic commissioners have stealthily begun to strike back by leveraging some of the same arcane rules that have stymied enforcement efforts for years — namely, that a bipartisan vote is necessary to do almost anything — to make the agency do even less. The goal appears to be to take a commission widely seen as dysfunctional and create further deadlock, compelling federal courts to fill the breach when it comes to policing federal election law.
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[Bipartisan vote...That's what Manchin wants...create further deadlock...compelling federal courts to fill in. It's just a thought!]
The chief architect behind the strategy is Ellen L. Weintraub, a Democratic F.E.C. commissioner since 2002, who described it as something of a last-ditch effort after years of watching enforcement actions become sidelined in 3-3 split decisions...
Here is what has been happening behind closed doors, according to people familiar with the commission’s private executive sessions: First, the Democrats are declining to formally close some cases after the Republicans vote against enforcement. That leaves investigations officially sealed in secrecy and legal limbo. Then the Democrats are blocking the F.E.C. from defending itself in court when advocates sue the commission for failing to do its job.
[How are they declining to close cases? By not voting? If the cases are not CLOSED they're sealed, you can't get any info on them. I understand that. Same is in a police investigation in street crime. How are we blocking the F.E.C. from defending itself in court? It's just a question! Two questions. Since the investigation is still "open" the Republican F.E.C. can't reveal anything?]
Lee E. Goodman, a Republican former F.E.C. chairman who stepped down in 2018, said the tactic amounted to “sandbagging federal judges” by making them believe deadlocked cases are unresolved.
[If they're DEADLOCKED three Fascists--three Party of God then since the vote has to be bipartisan how are they unresolved? Are we noot voting?]
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The combination of moves takes advantage of existing provisions in campaign law to essentially open the door for outside advocacy groups to directly sue campaigns in federal court...
“If I don’t believe the case ought to be dismissed, why would I vote to dismiss?” Ms. Weintraub said of leaving cases pending. “I’m just trying to get the law enforced.”
[If they're DEADLOCKED three Fascists--three Party of God then since the vote has to be bipartisan how are they unresolved? Are we noot voting?]
...
The combination of moves takes advantage of existing provisions in campaign law to essentially open the door for outside advocacy groups to directly sue campaigns in federal court...
“If I don’t believe the case ought to be dismissed, why would I vote to dismiss?” Ms. Weintraub said of leaving cases pending. “I’m just trying to get the law enforced.”
[Wouldn't you vote to not dismiss?]
The Republican commissioners are livid.
[See, I like this because I like Ellen because she's a Democrat and I hate Republicans. So I like that Republicans are livid but this is all visceral on my part, my viscera is not informed by my brain.]
Commissioner Sean J. Cooksey has warned his Democratic colleagues that they are going down “a very, very dark road” and revealed in a recent memo that there are now 13 such unclosed cases, calling them “zombie matters — dead but unable to be laid to rest.”
“They are on the losing end of the 3-3 votes, and they think that by concealing the information from the courts, they’ll get a different ruling,” [Swine Republican Commissioner Trey] Trainor said.
“They are on the losing end of the 3-3 votes, and they think that by concealing the information from the courts, they’ll get a different ruling,” [Swine Republican Commissioner Trey] Trainor said.
[HOW ARE THEY CONCEALING INFO? (However you're doing it, Ellen, I like it.)]
...Democrats pushed sweeping election legislation through the House this year, but the bill has stalled in the Senate. Senator Mitch McConnell of Kentucky, the Republican leader, has made loosening campaign finance rules a priority in his career, and the legislation lacks unanimous support from Democratic senators.
[So McConnell deadlocked it in the Senate...We're deadlocking it at the F.E.C....]
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“If they break it so much that federal courts are intervening, that would seemingly be an intolerable situation to Mitch McConnell,” [Adav] Noti said.
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“If they break it so much that federal courts are intervening, that would seemingly be an intolerable situation to Mitch McConnell,” [Adav] Noti said.
[Okay, well I really like that. So, McConnell doesn't want the F.E.C. to enforce the law so he's happy as a fascist pig in shit with a deadlocked, do-nothing F.E.C. He doesn't want democracy in America, he wants a Fasco-Christian theocracy so he's happy with a deadlocked Senate on the voting rights bill. Hmm. Did you see that quote from McConnell that I reprinted yesterday? “an agenda transparently designed to fail — and fail they will.” I only emphasized the "fail they will" because I didn't understand, assumed he misspoke, the "transparently DESIGNED TO FAIL" part. My newest crush Ellen is transparently designing to fail--in order to get into federal court and WIN! Did God's Party deliberately put everything and the kitchen sink into the voter bill so it would get deadlocked in the Senate and then have the states sued by us in federal court? I don't believe that that is so, there was too much real angst over Meathead Manchin's op-ed, but the parallels here are striking.]
...the new maneuver drastically accelerates and smooths the way for outside groups to pursue campaign finance challenges in the federal courts — a far less predictable and partisan place.
Instead of waiting for years for the commission to deadlock, and then filing long-shot lawsuits to appeal the F.E.C.’s split decision, the law allows advocates to sue the commission far sooner for defaulting in its basic duties. Then, because the agency isn’t defending itself in those lawsuits, groups have a mostly clear path to sue candidates and campaigns directly.
[Don't understand how they're not defending themselves.]
The tactic will work only as long as all three commissioners in the Democratic bloc agree not to close an investigation and not to defend the F.E.C. in court on a particular case.
There is another important, if obscure, legal factor in play. Currently, the federal courts give almost total deference to the F.E.C. when it decides not to pursue cases — even in the event of a 3-3 split — if commissioners cite “prosecutorial discretion” in their reasoning. Such cases are, more or less, not eligible for legal appeals.
“All the Republican commissioners need to do is include the magic words ‘prosecutorial discretion’ and a court will then decline to review the action,” said Paul S. Ryan, vice president for litigation at Common Cause, who has regularly filed F.E.C. complaints.
Indeed, Republican commissioners recently deployed that exact phrase — twice — in dismissing an investigation into whether Mr. Trump violated election laws with the payment of $130,000 to the pornographic actress Stormy Daniels in 2016 to keep her from publicly discussing her relationship with him.
The twist in the raft of unclosed cases is that they remain formally under active investigation and are thus confidential, meaning that Republican commissioners are unable to tell the courts what has happened and why. In other words, they can’t cite their own “prosecutorial discretion.”
[A-HA!]
“We can’t even tell the court under seal that we’ve handled a particular case,” Mr. Trainor said, calling the Democratic maneuver “completely unethical.” “In all of the cases where we’re not showing up, the judges are getting a one-sided story.”
[Wa-wa! Cry you little bitch.]
Ms. Weintraub said she hoped that leaving cases open would spur compromise, however unlikely that seems. “I’m hoping that my colleagues aren’t going to be quite so obstinate,” she said. “Maybe this provides some incentive for us to go back to the drawing table.”
[And that is PRECISELY the reasoning of Meathead Manchin! Deadlock yields compromise.]
