Campaign finance enforcement failures on full display for anybody who’s paying attention.

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From the Desk of Trevor Potter
Dear John,
The stage is being set in the Manhattan District Courthouse for the scheduled year-end trial of former President Donald Trump on state felony charges. News outlets will doubtlessly spend countless hours over the next months breathlessly analyzing and reporting on the legal minutia of this case.

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At the core of this matter is clear evidence that Trump engaged in a secret hush money campaign to protect his 2016 bid for the presidency from embarrassing revelations about extramarital affairs, an effort that included violations of New York corporate record keeping and disclosure requirements.

The media, politicians on both sides of the aisle and others have expounded at length about the merits and impact of the first-ever criminal indictment of a former president. Much less has been said about the federal agency that could have policed Trump’s illegal campaign activity from the start and held him accountable for acting willfully to conceal information from voters that may have influenced their choice for president.

I am of course referring to the Federal Election Commission (FEC), the independent government agency solely responsible for overseeing the integrity of federal election campaigns.

The revelations of a pre-election hush money payment to adult film actress Stormy Daniels burst onto the scene ([link removed]) in early 2018. After a complaint was filed with the Commission, the professional staff at the FEC recommended ([link removed]) that commissioners vote to open an investigation. Unfortunately, Republican members on the Commission voted as a bloc against this recommendation, causing a 3-3 tie, a deadlock that stopped the Commission from proceeding further. The FEC ended up dismissing the matter without any investigation.

I want to be clear about what happened in this instance: Republican Commission members chose complete inaction despite convincing evidence that an undisclosed payment was made to influence the outcome of the 2016 presidential race.

It is inconceivable to me that, faced with such evidence, the FEC I served on for four years as a Republican appointee would have behaved in a similar way. I can recall only a single instance of any deadlock in an enforcement matter during those years (1991-95). Our bipartisan view as Commissioners was that the law should be enforced equally on all candidates and committees, with no favoritism shown to either side.

My fellow FEC commissioners and I were committed to the notion that laws regulating campaign spending and requiring disclosure were necessary to protect ordinary voters and our democracy. We believed it was the Commission's job to ensure these laws were enforced in an even-handed way.

Unfortunately, in recent years the FEC has proven unable or unwilling to enforce the election laws in almost all major complaints filed with the Commission. This of course leads to an anything goes, Wild West atmosphere where campaigns and candidates believe, with reason, that they can get away with violating the law.

In the case of Trump's hush money scandal, it is certainly possible that a properly functioning FEC may have exerted enough of a deterrent effect in the run up to the 2016 election to prevent the scheme from going forward in the first place.

There are options for dealing with the current plight at the FEC. Campaign Legal Center (CLC) has examined these issues in detail ([link removed]) , and identified solutions that could break the dam of dysfunction.

First and foremost would be the nomination and confirmation of commissioners who believe in the mission of the agency. The primary reason behind the huge rise in FEC inaction has been the appointment of Republican members who have been willing to deadlock the agency and unwilling to enforce Congressionally mandated limits on contributions and disclosure requirements.

FEC rules could be changed to require a Commission majority vote to stop an investigation once professional staff recommends the agency move forward. If such a rule had been in place at the time of the Trump complaint, the FEC would have proceeded with its inquiry. The makeup of the Commission itself could be changed to match the majority of federal agencies, which, unlike the FEC, are not evenly divided between the two major political parties.

Naturally, these changes require Congress and the president to reject the status quo, in which secret spending on elections continuously escalates and deprives of voters of their right to know how funds are being spent and where they are coming from.

Whatever comes of the New York state prosecution of Trump for the alleged business records violations, the structural weaknesses in our federal government's campaign finance agency can be blamed for bringing us to this point, and they remain in place today. I hope we can forge an agreement that this glaring campaign finance violation presents a compelling case for advancing urgently needed reforms.
Sincerely,

Trevor Potter
President, Campaign Legal Center

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