The agency charged with enforcing federal campaign finance laws came before a congressional committee Wednesday amid calls to ramp up oversight, improve transparency and modernize technology as more money flows into politics than ever before.
Democrats on the House Administration Committee, which hosted the hearing, are calling for changes to the makeup of the Federal Election Commission. The six-member panel is evenly split between Democrats and Republicans, a breakdown that critics say has led to partisan gridlock and hampered the commission’s ability to enforce the rules.
“The committee needs to assess whether the sole mission of the FEC is being fulfilled, and that is protecting the integrity of [the] federal campaign finance process and ensuring transparency for the American people,” said Rep. Joseph D. Morelle, D-N.Y., the committee’s ranking member. “The numbers tell a story of disagreement and deadlock, especially on the most important issues facing the FEC.”
Since the Citizens United case opened the door in 2010 to super PACs that could raise and spend unlimited amounts as long as they did not coordinate with candidates, the FEC’s nonpartisan career staff has recommended investigations into 59 instances of alleged unlawful coordination. The commission authorized investigations into just seven of those cases, Morelle said.
Democrats have proposed legislation reducing the number of commissioners from six to five. They say the current structure also has allowed Republican commissioners to ignore the findings of nonpartisan staff. Republicans say changing the size of the commission and altering its partisan balance would inject more politics into the decision-making process.
But Morelle said that appears to be what’s happening now.
“Most troubling to my mind is the FEC’s apparent partisan enforcement of matters related to former President [Donald] Trump,” Morelle said. “The FEC considered 56 matters involving allegations that the Trump organization violated the law, and nonpartisan career staff found reason to believe a violation occurred in 26 of those 56 matters.
“Republican commissioners voted down all 26,” Morelle said. “These votes carry the unmistakable odor of partisanship.”
Special treatment?
Commissioners Ellen L. Weintraub and Shana M. Broussard, both Democrats, wrote in a memo that Trump and his backers have been on a “remarkable win streak” when it comes to FEC enforcement.
“There does seem to be a problem where some people are not treated the same as everybody else,” Weintraub said.
The Republican who serves as vice chairman of the commission, Sean J. Cooksey, said Congress was “extremely wise” to create an agency with an equal number of commissioners from the two parties because it requires bipartisan agreement to act.
“It is the most important structural feature of the agency to prevent it from engaging in partisan, politically motivated investigations,” Cooksey said.
Commissioner James E. “Trey” Trainor III, a Republican appointed by Trump, told lawmakers that the FEC has already become “weaponized,” citing an investigation into a pro-Trump Facebook page that was later dropped.
The hearing marked the first time in 12 years that FEC commissioners have come before a congressional oversight committee.
Some Republicans were critical of Weintraub, who has served on the FEC for more than two decades even though her term expired in 2007. She said it was up to the president to appoint a commissioner to replace her.
Several commissioners highlighted progress the FEC made in recent years, including clearing a backlog of cases.
“Importantly, of the 500 enforcement matters that the agency has completed since January of 2021, the commission reached some kind of bipartisan agreement in 90 percent of them,” Cooksey said. “Oftentimes those cases were decided unanimously. People tend to focus on the division and exaggerate it.”
Morelle noted that that figure was deceiving. Just as much of the mundane business of Congress is approved on a bipartisan basis, so too are the routine matters overseen by the FEC. “It’s easy to look at the easy things,” he said. “The question is on the tough things, where the enforcement really matters. I think we’ve seen a complete partisan breakdown.”
Rep. Greg Murphy, R-N.C., noted that the FEC would likely be asked to weigh in on a number of important matters in the future, including how to regulate “deepfake” political ads created using artificial intelligence tools. (Last month, the commission advanced a nonpartisan advocacy group’s request for rules governing such ads.)
“I was just reading about deepfaking, and good Lord, who knows what this is going to look like in 20 years?” Murphy told the commissioners. “It’s up to you guys to actually be objective and clean and make sure things are free and are fair.”
Pleas for funding
Commissioners on both sides of the aisle said significant investments are needed to fix the FEC’s outdated technology.
Rep. Stephanie Bice, R-Okla., noted that the commission is seeking a 14.5 percent increase in its budget for fiscal 2024.
FEC Chair Dara Lindenbaum said the money is needed to address long-deferred maintenance. “For over a decade, the commission has not asked for or received additional funding, so we have not kept pace with inflation,” she said. “We have critical vulnerabilities. Our staff is cobbling things together and doing an incredible job of it, but we need to improve all of these systems.”
One issue highlighted by Rep. Bryan Steil, R-Wis., is the FEC’s inability to provide easy public access to the volume of campaign data processed by WinRed and ActBlue, fundraising platforms that process contributions for Republican and Democratic candidates, respectively. Both platforms have grown significantly amid the rise of donors giving amounts as little as $1 in response to online solicitations from candidates or PACs.
“A massive number of contributions to both sides of the aisle to political candidates of all stripes are going through these two vehicles,” Steil said.
But the large files — a text version of ActBlue’s report for the first six months of this year is 6.6 gigabytes — are difficult for the public to download, Cooksey said. “The volume of transactions and contributions that we report is increasing exponentially over the last few cycles and the infrastructure has not kept pace,” Cooksey said. “We need additional investments in order to keep it state of the art.”
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