Welp, It’s Still Fine to Solicit ‘Dirt’ From a Foreign Government in U.S. Elections

WASHINGTON — Remember when Donald Trump Jr. solicited “dirt” from a Russian lawyer on Hillary Clinton in June 2016? An election rule that would bar campaigns from receiving “compromising” information from foreign entities won’t go into effect anytime soon.

That’s because the Federal Election Commission, the country’s campaign finance watchdog, won’t be able to vote on anything now that Vice Chairman Matthew Petersen is resigning, leaving the six-member commission with just three seated members.

Just over a year until the next presidential election, the FEC is unlikely to take action on two proposed rules to redress the abuses that happened in the 2016 presidential election.

• One would make it illegal for candidates to accept intelligence from foreign entities;
• The other would increase the transparency of online political ad spending.

In fact, it’s now highly unlikely the FEC will be able to implement any strong campaign finance reform before the 2020 election, experts say.

That’s because with the resignation this week of Petersen, a Republican, the agency will only have three members. That’s one person short of the four required to conduct meetings, issue fines to candidates for violating campaign finance laws, conduct audits, or vote on rules designed to curb foreign interference in American elections.

“You’ve got no cop on the beat running into an election where the Russian government and other rivals will almost certainly take action to influence the American electorate,” says Daniel Weiner, senior counsel at the Brennan Center for Justice and former counsel to FEC Chairwoman Ellen Weintraub.

The proposed “compromising information” rule, if adopted in earlier election cycles, would have forced President Trump to disclose the "dirt" his campaign got in 2016 on his rival Clinton, for example. Trump has repeatedly said there was “no collusion” between his campaign and the Russian government, and that “even if there was, it’s not a crime.” This rule would change that.

A second proposed rule change, which the FEC considered for over a year, would require more aggressive disclosures from the people or entities that buy campaign ads online, a direct rebuke to the Russian bots that posted propaganda on Facebook with impunity during the 2016 election.

And though there was no guarantee that the FEC would pass either measure, most commissioners agreed that it was critical to safeguard U.S. elections from the influence of foreign actors.

“The FEC, at least notionally, are deeply divided about how to regulate domestic campaigns, but are somewhat less divided that blocking foreign meddling in U.S. elections is an urgent priority,” Weiner said. “Whatever chance there was of either of those things happening has greatly reduced now, unless they move very quickly to full Petersen’s seat. It will be very hard for the commissioners to act before the election.”

Members of the six-commissioner agency require Congressional approval after they’re nominated by the president for a spot on the board. But Sen. Mitch McConnell (D-Ky.) hasn’t held a confirmation hearing for appointees since he became the chamber’s majority leader in 2015, and one Trump-appointed commissioner has been waiting since 2017 for a hearing.

Worse, the six-year terms of every commissioner currently sitting on the board have expired — meaning that they could also leave at any time.

Petersen didn’t disclose why he is leaving the commission, saying only in a statement: “I take satisfaction in having fulfilled my obligation to safeguard First Amendment interests while faithfully administering and enforcing the federal campaign finance laws.”

In December of 2017, Petersen withdrew from consideration for a seat as a judge on the U.S. District Court for the District of Columbia after an embarrassing turn during his confirmation hearing, when he couldn’t answer basic questions about legal procedure.

While this isn’t the first time the FEC will lose its quorum — the same thing happened in 2008, when it had only two commissioners on the board — it bookends over 10 years of inaction by the agency.

Weiner says that in the decade since the FEC last lost quorum, the commission has been “largely unable to come to an agreement on major questions of policy.”

That’s partly why it has been so slow to adopt campaign finance rules that respond to the changing digital landscape. Weiner called the FEC’s campaign finance regulations “Friendster-era” policies.

“Its rules concerning Internet campaign ads largely date back to an era before Twitter existed, and Facebook was a Harvard project that Mark Zuckerberg and his friends launched in their dorm room,” Weiner said. Political ads in print, television, and radio, for example, require disclosures about who’s paying for them –– but ads online don’t.

That’s not to say the commission is useless. In March, it issued nearly $1 million in fines to the political action committee that backed Jeb Bush’s presidential campaign in 2016, as well as a Chinese company that donated to it. (It’s illegal for PACs to take money from foreign nationals.)

It has also issued tens of thousands of dollars in fines to groups connected to political titans David and Charles Koch.

Despite being unable to take enforcement action after Petersen’s last day on Aug. 31, the FEC will continue to field complaints about potential violations of finance laws. It will also continue to publish campaign expenditure reports.

But Weiner warns that Petersen’s move isn’t an anomaly, and that without a concerted effort to appoint new commissioners, more people could leave the agency.

That’ll take effort from McConnell as well as Senate Minority Leader Chuck Schumer (D-NY), since there are still vacancies on the board for Democrats.

“Until this agency is treated as the important player that it is, and we make it a priority, we’re going to keep running into situations like this,” Weiner said. “We need to fundamentally think about how we should reform this agency. One of these is doing away with indefinite holdovers, because eventually they’re going to move on.”

Cover: Donald Trump Jr. speaks at the Western Conservative Summit at the Colorado Convention Center July 12, 2019. (Photo by Andy Cross/MediaNews Group/The Denver Post via Getty Images)