Court says it can’t rescue FEC from partisan deadlock … again

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Federal Election Commission headquarters (Chip Somodevilla/Getty Images)

The D.C. Circuit Court of Appeals on Tuesday said courts cannot second-guess Federal Election Commission (FEC) decisions to dismiss enforcement actions against groups alleged to have violated campaign finance laws.

The case, which most recently landed before former Supreme Court nominee and current D.C. Circuit Judge Merrick Garland, stems from the FEC’s 2015 decision not to pursue enforcement action against conservative “dark money” nonprofit Commission on Hope, Growth and Opportunity (CHGO). Stuck in a partisan 3-3 deadlock on whether to pursue action, the commission was forced to dismiss the case.

Citizens for Responsibility and Ethics in Washington (CREW) promptly sued the FEC over its decision. In June 2018, the D.C. appeals court, which then included now-Supreme Court Justice Brett Kavanaugh, ruled 2-1 that the FEC’s decision to dismiss the case with “prosecutorial discretion” could not be reviewed by the court. The court on Tuesday doubled down on its decision, declining to rehear the case.

In March 2019, a U.S. District Court judge in a different case brought against yet another dark money group whose spending has been under question for more than a decade concluded that precedent set in the CHGO case barred it from reviewing the FEC’s dismissal.

The most recent court order is yet another blow to FEC Chair Ellen Weintraub, the commission’s only Democrat, who had hoped courts could review enforcement matters. Weintraub has repeatedly criticized her Republican colleagues as “obstructionists,” blaming them for the agency’s lack of enforcement.

“With this decision, FEC has utterly lost its ability to enforce the law as foreign [governments] attack our elections, dark-money groups operate from the shadows and super PACs run rampant,” Weintraub tweeted Tuesday.

The commission requires four votes to pursue an enforcement action. That had long been an issue with the FEC’s 3-3 partisan split, but it makes things even more difficult with the agency currently short two commissioners.

Republican Commissioner Caroline Hunter told the Washington Post the decision “deals a blow to the so-called reformers’ efforts to use the [FEC] as a partisan rubber stamp for their own agenda.”

The new court order leaves many questions unanswered, in CHGO’s case and regarding how the law will apply in other circumstances.

The Federal Election Campaign Act (FECA) notes that the commission’s decisions can be reviewed if it is “unable or unwilling to apply settled law to clear facts.” But the law doesn’t delve into how courts should deal with partisan gridlock.

“Given FECA’s silence on deadlocks, it is no surprise that the statute also does not instruct how to differentiate between a deadlock vote that prompts a dismissal and a vote by four or more Commissioners to dismiss the action outright,” D.C. Circuit Judge Wilkins’ concurring opinion laments, chronicling a litany of hypothetical what-ifs.

“While these questions are important, this is not the case to decide them,” the concurring opinion concludes. “It is unlikely that a future case will implicate—or answer—all of these concerns. But I hope that in the right case, with adequate briefing from interested parties, we can better grapple with these questions and the consequences of a potential holding.” That, they note, or “perhaps this is just a hole in the statutory scheme that only Congress can fill.

Judge Cornelia Pillard dissented, arguing the commission’s dismissal of the complaint “was based on legal error” and reviewable on that ground.

CHGO paved an early roadmap for other dark money groups, enabling them to effectively take millions of dollars from anonymous donors, spend those millions on political ads then shut down “at the first sign of investigation” without having ever filed reports with the FEC.

Dating back to 2010, CHGO paid millions of dollars on a series of political ads featuring dancing cartoon representations of President Barack Obama, Nancy Pelosi and Democrat incumbents in contested races. The ads stopped short of using “magic words” of express advocacy, instead inviting voters to “join” Republican challengers. Despite reporting more than $4.6 million in spending on advertising in its tax return for 2010 — roughly 96 percent of its total expenditures that year  — CHGO told the IRS none of that was political activity and reported no spending whatsoever to the FEC.

CHGO exploited a common excuse among dark money groups, claiming the purpose of those ads was “solely to educate the public on matters of economic policy formulation.” An FEC general counsel’s report concluded otherwise, finding that CHGO’s major purpose was in actuality to “influence the election of federal candidates.”

Internal documents from the FEC revealed that CHGO promised donors it would “win Senate seats” using donations, without ever revealing its financiers’ identities, meaning it may have made false statements to the FEC and IRS.

While CHGO gained notoriety as one of the first dark money enterprises to so successfully deploy these tactics, the presence of dark money in the American political system has continued to grow. With more than $1 billion in dark money reported to the FEC and even more money left unaccounted for, this order leaves even fewer avenues to pursue enforcement and the door open for millions of dollars from secret donors to continue flowing into U.S. elections.

Edit 5/14/19 3:25 p.m.: Quote from Republican FEC commissioner Caroline Hunter added.

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