Without the FEC to Help, Americans Can Sue Campaign Finance Violators Themselves

With the election only 26 days away, the cop on the campaign corruption beat, the Federal Election Commission (FEC), is missing. The Commission has been without a quorum for almost 100 days, leaving it unable to enforce our anti-corruption laws. Indeed, the Commission has been without a quorum most of this past year, and there does not seem to be any urgency from the current administration and Senate leadership—all individuals policed by the Commission—to change that. Yet Congress foresaw this possibility and provided a safeguard: When the FEC fails, Americans can bypass the FEC and sue the violators in court themselves. That empowers Americans to protect themselves, to get the information needed to speak out against corruption and hold officials accountable, without relying on bureaucrats.

Just as our rights to fair markets, clean water, and equal employment are protected by both government agencies and private individuals seeking relief in courts, individual Americans share responsibility with the FEC to protect our rights to clean elections. Understandably, there are significant checks on abuse. Before suing, complainants must first present their claims to the Commission where—if staffed—the commissioners can dismiss meritless claims, as long as they are in bipartisan agreement. Moreover, the FEC can pursue submitted claims on its own, removing the need for a private suit. But if a complainant’s claim has merit and the FEC can’t or won’t investigate—including because it lacks a quorum—then complainants have the right to seek redress in court, just as litigants have done to protect their rights since the beginning of the country.

While this particular right to sue over campaign finance violations has existed for 40-plus years, it’s been seldom used. But as the FEC falls into total dysfunction, it is not surprising that FECA citizen suits have come to pick up the slack. Recently, as a direct result of one of these suits, a dark money group was forced to disclose its donors—something the FEC hadn’t even attempted post-Citizens United. In another case, a regulation that had illegally limited disclosure was struck down, reinstating the broader disclosure regime Congress intended. The FEC had known about the illegal regulation for decades but its partisan split prevented the agency from fixing it. In a third, a dark money group faced a citizen suit after a partisan bloc of commissioners twice tried to permit the group to flout the law using reasoning so specious that it caused a court to question the commissioners’ sincerity. The FEC’s current lack of quorum creates an even greater need, and opportunity, for these types of suits so individuals Americans can protect themselves.

Unfortunately, even when the agency had a quorum, it often proved incapable of protecting American elections. Long called a “poster child for a broken Washington,” the six-member Commission evenly divided between Democrats and Republicans produces partisan splits that routinely deadlock the agency, blocking enforcement or even investigations. These gridlocks prevent the FEC from pursuing serious cases, like credible allegations of foreign political interference. Even without a deadlock, the agency is understaffed and underfunded, and as a result, cases still languish at the agency for months or years. While millions of dollars flowed into campaigns from unknown sources, FEC enforcement actions and fines were declining. That means illicit campaign activities, like the allegations that President Donald Trump’s campaign is laundering millions in payments or that former presidential candidate Michael Bloomberg gave a massively excessive contribution of his unspent campaign funds to the Democratic National Committee, are not likely to be investigated by the FEC anytime soon, even if agency staffing is restored.

Critics of the FEC often argue that, as a partisan divided commission charged with policing the powerful and the very people who appointed them, it was designed to fail. Elected officials will appoint loyalists to run it, like the former campaign lawyer Trump recently appointed. Loyal commissioners can then employ the flimsiest rationales—or even none at all—to block investigations into their patrons and their allies, keeping voters in the dark about just who is behind their candidates.

But in the wake of Watergate, Congress wasn’t so cynical. It created the FEC, but also foresaw the possibility of political abuse of the FEC and gridlock. So, it empowered Americans to protect themselves if, and when, the government agency failed.

Congress should re-staff the FEC with commissioners who enforce the law rather than protect their partisan allies from it and should strengthen the law’s safeguards against dysfunction by expanding opportunities for citizen suits. Just as Congress understood in the aftermath of Watergate, and as recent history makes plain, we cannot always expect future officials to be angels, and we cannot leave Americans to their whims. Defending our democracy is a burden that must be shared by all of us. Our rights to free, fair, and transparent elections depend on it.

Image: Protesters gather outside the U.S. Supreme Court as Sen. Chuck Schumer (D-NY) speaks during a press conference July 30, 2019 in Washington, DC. Photo by Win McNamee/Getty Images

 

About the Author(s)

Stuart McPhail

Senior Litigation Counsel at CREW. Follow him on Twitter (@stuartmcphail5).