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The FEC Won't Be Able to Reform Super PACs Before 2020: ‘That's Kind of Crazy’

Interview: FEC Chair Ellen Weintraub explains what the FEC can — and can't — do with only three members.

by Shawna Thomas and Morgan Baskin
Sep 5 2019, 6:44pm

WASHINGTON — Federal Election Commission Chairwoman Ellen Weintraub knows the agency could have done more to prevent the Russian interference in the 2016 election — but ideological differences in the agency made it impossible to get anything done.

Things are about to get worse at the nation’s only federal campaign watchdog before they get better.

That’s because the FEC’s Vice Chairman, Matthew Petersen, resigned last week — leaving three seats on the six-member board open. FEC rules mandate that the agency have four commissioners, or a quorum, before it can conduct official business.

With Petersen gone, the commission can’t hold meetings, issue advisory opinions, vote on opening investigations into campaign finance violations, or issue fines to candidates who violated the law. And it takes time to fill an empty seat: President Trump’s single nominee has waited since 2017 for Congress to vote on his confirmation.

On Tuesday, VICE News spoke with Weintraub, the longest-serving member of the commission — and the body’s lone Democrat — who is in her third separate stint as the FEC’s chair.

In an hour-long interview, Weintraub defended the organization’s productivity, but also acknowledged that the FEC has failed to make critical new campaign finance rules, including laws that would help determine whether a foreign entity was trying to interfere in U.S. elections.

VICE News: With Petersen’s resigning, the FEC loses its enforcement power. What will that mean?

Weintraub: Any investigations that were previously authorized will go on. Our lawyers will continue to try and find out those key facts for us, and write them up, tee it up for a decision for when you next have a quorum, which hopefully will be very soon. There are hundreds of complaints and hundreds of enforcement matters that are in some stage of the enforcement process.

But we won't be able to launch any new investigations until we get a quorum back.

Can the FEC refer those complaints to another investigatory agency?

We are the sole civil enforcement body for campaign finance violations at the federal level. If it is a knowing and willful violation, the Justice Department could get involved; it could be criminal liability. But that is not the typical situation.

Historically the FEC has been deadlocked along party lines and not gotten much done. Does the lack of a quorum now really change anything?

One of the things that I was doing as chair was trying very hard to reduce the backlog of cases that were then, and continue to be, sitting around waiting for commission decision. There has been a tendency in the past for commissioners to sit too long on those decisions. And I was trying to move the ball forward, we were making some good progress. I was getting cooperation from my colleagues.

What would be most helpful is if we get commissioners who are dedicated to the mission of the agency, and are willing to enforce the law. That has been a problem in the past — that some commissioners don't really like the law to begin with, and have a great deal of skepticism about government regulation in general, but campaign finance regulation in particular.

Are you talking about Mr. Petersen?

I like Matt Petersen. He's a very nice guy. And I enjoyed working with him. But it's not a secret that Republicans are more skeptical about campaign finance regulation than Democrats are.

If you had one of the Republican commissioners here, they would tell you that their concerns are about the First Amendment, and that this is an infringement on people's First Amendment rights when they have to comply with campaign finance regulations that limit their ability to get their message out. But I think a lot of other folks in the country believe that money is not speech, and limits on the amount of money and who the money can come from are appropriate in order to prevent conflicts of interest.

Can you talk a little bit about what you wish the FEC accomplished over the last decade?

We have not, since 2010, adopted any rules at all governing super PACs. That's kind of crazy, because they have assumed a huge role.

We last addressed the internet in a rule making in 2006, 2007. And it’s a very different environment. Back then, YouTube was in its infancy, and the notion of something going viral at no cost, without somebody having to pay to place information on some medium that people would see –– that notion just didn't even exist back then. So I think that there are lots of areas, I completely agree with those who think that we have not done as much as we could have.

Dealing with foreign money, has become a huge issue, trying to prevent foreign influence in our elections. This is something I was concerned about, even before 2016 and all the revelations about what happened with the Russian attempts to intervene in our elections.And if we don't know where the money's coming from that we don't know whether it's legal either.

We had a case just recently that involved some phenomenally serious allegations of Russian money being funneled into the NRA in order to affect our political debate and our local system. And we should have investigated that. I thought it was a phenomenally serious allegation that demanded investigation. Our lawyers did not recommend that we investigate it.

Why didn’t they recommend that the FEC investigate this allegation?

I think, after over a decade of having their recommendations rejected, our lawyers are a little bit gun shy on some of the recommendations these days. And I say that, you know, I love our staff, I think they're dedicated to the mission of the agency. But you know, it has an impact if recommendation after recommendation gets shot down. We start to think, well, maybe I should temper my recommendations. And this was an instance where I think they made the wrong call.

Has the last election cycle changed the bar for what constitutes a serious allegation?

Well, I think that in the last decade, we have seen a real strategic change on the part of the Republicans on the commission. And they have made an ideological choice that they just want the agency to be doing less, and that they have raised the bar on what kind of standard they're willing to adopt, in order to start an investigation. And that started in 2008.

Why have you stayed for as long as you have?

I stay because I think the mission of this agency is vital to our democracy. And every day, I get to come in here and fight for the rights of U.S. citizens to know who's behind the money. Who's sending money to our politicians? To whom are they indebted? Whose interests are they going to have at heart when they get into office? I think this is really critical, that people need to have this information.

Cover: FEC Chairwoman Ellen Weintraub at the agency’s office Sept. 3, 2019. (Photo: Chris Olson/VICE News)