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A DEMOCRAT, SIDING WITH THE G.O.P., IS REMOVING LIMITS ON POLITICAL
CASH AT ‘BREATHTAKING’ SPEED  
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Shane Goldmacher
June 10, 2024
The New York Times
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_ An ascendant new bloc of three Republicans and one Democrat is
voting together to roll back limits on how politicians, political
parties and super PACs raise and spend money. _

, Photo Illustration by Erin O'Flynn/The Daily Beast/Getty and
Wikimedia Commons

 

For more than a decade, America’s campaign watchdog agency was a
portrait of dysfunction. Divided equally between three Republicans and
three Democrats, the Federal Election Commission deadlocked so often
it became a political punchline as investigations languished,
enforcement slowed and updated guidelines for the internet era
stalled.

Now, the commission has suddenly come unstuck.

In a series of recent decisions that are remaking the landscape of
money in American politics, an ascendant new bloc of three Republicans
and one Democrat is voting together to roll back limits on how
politicians, political parties and super PACs raise and spend money.

Reform groups are aghast at what they see as the swift unraveling of
longstanding restraints. Conservatives who for years have dreamed of
loosening restrictions are delighted, even though many of the rulings
were sought by one of the Democratic Party’s most prominent
attorneys, Marc Elias, who was seeking political advantage and clarity
for his clients.

Those on both sides of the ideological divide agree on one thing: The
changes amount to some of the most significant regulatory revisions
since the campaign finance law, the McCain-Feingold Act, was put in
place two decades ago.

 

“These decisions are a monumental shift in the law at the
commission,” said Sean Cooksey, the Republican chairman of the
Federal Election Commission. “The deregulators are winning.”

 

Image

[Marc Elias stands and speaks, gesturing with his right hand.]
“Some of the advocacy groups — they are fighting over
hypotheticals,” said Marc Elias, one of the Democratic Party’s
most prominent lawyers. Credit...Pool photo by Robert Willett

A new swing vote
At the center of the shift is Commissioner Dara Lindenbaum, a Democrat
who has repeatedly crossed the aisle to vote with her Republican
colleagues since President Biden appointed her and she was confirmed
by the Senate
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in a 54-38 vote in 2022. The rupture inside the once-unified bloc of
Democrats has gotten so tense that at one point an actual olive
branch, procured on Etsy for $16, was given as a peace offering —
and was rejected.

“We are in a new era,” said Adav Noti, executive director of the
Campaign Legal Center, which pushes for stricter interpretation and
enforcement of the law. “It is breathtaking the speed with which the
rules are being torn down. There has been more activity in the last
two years to allow money into the system than in the 20 years before
that combined.”

One decision this spring that is already reshaping the 2024
presidential race allowed super PACs and campaigns for the first time
to work together to plan and execute costly door-to-door canvassing
operations. Politicians had previously been forbidden from
coordinating strategy with super PACs, which can raise unlimited
amounts of money, to restrain the influence of megadonors on
candidates.

 

But the commission ruled that canvassing work was exempt because it
did not amount to “public communications,” freeing politicians and
super PACs to work more closely than ever.

Another recent ruling
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permitted federal candidates, for the first time, to raise unlimited
money for state-level ballot measures.

The commission decided that a wealthy donor could put money into a
trust that then could distribute donations to campaigns — while
keeping the original source anonymous. And it ruled in 2022 that
certain types of mass text messages did not constitute “public
communications” either, subjecting them to fewer restrictions.

All of those decisions — along with numerous others — were settled
on a 4-2 vote, with Ms. Lindenbaum as the swing commissioner.

 

“It’s inexplicable and it’s stunning,” said Senator Sheldon
Whitehouse, a Rhode Island Democrat who is one of his party’s
leading voices for curbing the influence of money in politics. At
first, Mr. Whitehouse said, he hoped Ms. Lindenbaum was tactically
yielding to notch other “strategic victories” in return. But no
longer. “We don’t see any sign that this is horse-trading,” he
said. “This looks more like just surrender.”

 

Image

[Dara Lindenbaum sits in front of a microphone at a House hearing. ]
Commissioner Dara Lindenbaum testifying during a hearing on Capitol
Hill last year.Credit...Alex Wong/Getty Images

‘Caught by surprise’
In a wide-ranging interview, Ms. Lindenbaum downplayed both her role
and the sweep of the decisions. “I don’t see them as necessarily
moving the needle,” she said. Rather, she said, she was simply
following the law and formalizing what had been happening in practice,
such as with one 4-2 ruling that members of Congress could legally use
their PACs for their own personal benefit.

“We don’t need to try to broaden the scope of the law to cover
activities that we find to be bad or icky,” she said. “What the
law says and what some people might wish the law says are
different.”

At first blush, Ms. Lindenbaum would seem a surprising apostate for
the left. She once marched with Code Pink
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the left-wing antiwar group, and later served as a top lawyer for
Stacey Abrams, the progressive former candidate for Georgia governor,
and her voting-rights group.

“She came from the progressive community, so I think everyone was
caught by surprise,” said Craig Holman, a lobbyist for Public
Citizen, a consumer-advocacy group.

 

But it is Ms. Lindenbaum’s work in the trenches of campaigns, where
lawyers sort through the law’s gray areas to decide what can and
cannot be done, that her supporters and detractors alike say has
informed her thinking.

Ms. Lindenbaum said her perspective as a lawyer who represented
politicians who faced “ridiculous” allegations of wrongdoing was
valuable to the commission. “I have the practical experience and I
can explain why somebody did something a way they did,” she said.

Mr. Noti said he had been hesitant to air his grievances with Ms.
Lindenbaum publicly, lest it lead to backlash. Back when she was a
private attorney, she objected through a mutual acquaintance to a
public comment Mr. Noti had made about one of her clients.

“I have thought there was a potential that speaking out could make
things worse rather than better,” he said. “But the recent set of
rulings — I’m not sure what worse would look like.”

Jason Torchinsky, a Republican elections lawyer, hailed the spate of
recent decisions.

“Lots of things facing the F.E.C. call for practical applications of
campaign finance law, and Commissioner Lindenbaum brings that to the
commission from her years as a day-to-day lawyer in the field,” he
said.

 

Image

[Ellen Weintraub speaks in front of a microphone at a House hearing. ]

Commissioner Ellen Weintraub has served on the Federal Election
Commission since 2002.Credit...Alex Wong/Getty Images

The actual olive branch
There have been brief periods of comity at the commission, which was
created in the wake of the Watergate scandal. But for 15 years, the
agency was defined by 3-3 gridlock on seemingly everything
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Donald F. McGahn II, who became a commissioner in 2008 and later was
President Donald J. Trump’s first White House counsel, imposed
discipline on the Republican bloc when he arrived. The leader of the
Democratic opposition became Commissioner Ellen Weintraub, who has
served on the commission since 2002.

The dysfunction was so bad that by 2021, Ms. Weintraub pushed the
Democrats to adopt the unusual tactic of refusing to close stalled
investigations
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in hopes the commission would get sued for failing to act. The
Democratic bloc then refused to send lawyers to defend the agency in
court.

Ms. Lindenbaum unraveled that strategy almost immediately, providing
the fourth vote to close all of those cases, some of which dated to
2016.

 

It was the beginning of what multiple people said was a frosty
relationship between Ms. Lindenbaum and Ms. Weintraub, though both are
Democrats. Tensions ran especially high with Ms. Weintraub’s
longtime counsel, Tom Moore.

At one point in late 2022, Mr. Moore ordered an actual olive branch on
Etsy and gave it to Ms. Lindenbaum as a present at a commission
holiday party. He attached a handwritten letter seeking to reset
relations.

“I was sincere,” Mr. Moore said.

He never heard back.

Ms. Lindenbaum said it would be inappropriate to discuss another
commissioner’s aide in detail, but said of the episode:
“Forgiveness only comes with a true apology and a true recognition
of faults. And if I don’t have a true recognition of faults,
acknowledgment of what was done to bring about the apology, it is not
an apology. And I will not accept it.”

Mr. Moore, who declined to comment on Ms. Lindenbaum’s response,
left the commission in 2023 and has watched in frustration as it has
moved from deadlock to deregulation.

“When nothing’s happening, nothing bad is happening,” said Mr.
Moore, now a senior fellow at the Center for American Progress. “Now
bad things are happening.”

 

Among Republicans, Ms. Lindenbaum’s reception has been warmer. Mr.
Cooksey said he bonded with her over their past work in politics and
over being parents of young children.

“I doubt that there is a single mainstream policy issue that we
agree on,” he said. “But we, I think, do both agree about how the
current campaign finance system is burdensome and overly complicated
and often unfair.”

Ms. Lindenbaum said she was fighting for more agency funding and
pushing for Congress to strip the street addresses of donors from
online contribution records.

Outside watchdogs worry about the slow pace of investigations. A
little-noticed footnote in one recent statement by Ms. Weintraub
revealed that the general counsel’s office was actively conducting
only three investigations nationwide.

“Dara has turned the F.E.C. from dysfunctional to functionally
avoiding enforcement,” Mr. Holman said.

 

Image

[Sean Cooksey sits at a House hearing and speaks into a thin
microphone.]
“The de-regulators are winning,” said Sean Cooksey, the Republican
chairman of the Federal Election Commission. Credit...Alex Wong/Getty
Images

A partisan twist
One surprising thread through many of Ms. Lindenbaum’s most
consequential decisions is that they were sought by Mr. Elias, who has
become the face of voting-rights litigation on the left.

But at the commission, Mr. Elias is better known for pressing to
loosen restrictions on money for his Democratic clients. That includes
seeking the new rules allowing super PACs and candidates to coordinate
canvassing, allowing federal officials to raise unlimited sums for
ballot measures and loosening rules on text messaging.

His role reveals an important ideological divide on the left between
those who oppose the influence of money and practitioners who want to
elect more Democrats.

“Some of the advocacy groups — they are fighting over
hypotheticals,” Mr. Elias said. “They are regulating for the thing
that isn’t real.”

 

Interestingly, the campaign arm of the Senate Republicans lobbied
against some of the looser rules that Mr. Elias successfully sought,
warning against making sweeping changes in an election year.

“The campaign finance system has to work,” Mr. Elias said,
praising Ms. Lindenbaum for providing “clear guideposts.”

What Democrats and Republicans are both keenly aware of is that Ms.
Lindenbaum’s term runs all the way until 2027. “We’re not
done,” Mr. Cooksey said.

“Who would have thought,” said Mr. Whitehouse, the Democratic
senator, “deadlock and dysfunction would be the good old days?”

 

Shane Goldmacher [[link removed]] is a
national political correspondent, covering the 2024 campaign and the
major developments, trends and forces shaping American politics. He
can be reached at [email protected]. More about Shane
Goldmacher [[link removed]]

See more on: Federal Election Commission
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Democratic Party
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* Federal Election Commission; Commissioner Dara Lindenbaum; Money
and Politics;
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