If you had to pick the most broken institution in Washington, which one would you choose? Would you pick Congress, where lawmakers show up and grind out legislation even when it has zero chance of passing? Maybe you’d pick the courts, which, after years of conservative activism, have gotten philosophically warped. If I had to pick, I’d go way smaller. I’d pick the Federal Election Commission. It’s a place that’s been described as “notoriously dysfunctional.”
Ellen Weintraub is a commissioner at the FEC—part of a six-person leadership team that is purposely split down the middle: three Republicans, three Democrats. (Weintraub is a Democrat.) The idea here is that, by keeping the commission in a 3–3 split—and requiring four votes to get anything done—nonpartisan decision-making will follow.
Instead, all of the bickering you’ve gotten used to in Washington? It plays out in miniature at the FEC. During his term, President Donald Trump simply refused to appoint commissioners. That meant cases couldn’t be closed. Fines weren’t imposed. And that was in 2020, the most expensive election cycle ever. “The American people deserve better from the only government agency with civil enforcement authority over the campaign finance laws,” Weintraub says.
Now, the commission is once again fully staffed. But that hasn’t necessarily made things work better. Because, according to Weintraub, her Republican colleagues share a philosophical approach to their work. Their philosophy is that the FEC should not exist. “You can look at cases that involve allegations against Democrats. You can look at allegations against Republicans. And regardless of who’s being complained about, it’s always the Democrats who are trying to enforce the law and the Republicans who are trying to block enforcement of the law,” she said. “I regret that that has happened. That didn’t used to be the case for most of the agency’s history.”
But Weintraub has an unconventional scheme to try to fix that. On Thursday’s episode of What Next, I spoke with the FEC commissioner about how she’s trying to spur her notoriously dysfunctional agency into action—by leaning in to its gridlock. Our conversation has been edited and condensed for clarity.
Ellen Weintraub: I think when this agency was first established back in the 1970s, people were concerned that it would just be Democrats protecting Democrats and Republicans protected Republicans. And that’s why the agency wouldn’t work. And that’s where the gridlock would come from.
But that isn’t actually what has happened. It’s not the way it has played out. And unfortunately, campaign finance, like a lot of other topics in Washington, has become partisan, where one party has one philosophy on campaign finance regulation and the other party has a different philosophy.
The Republicans are pro money, and the Democrats are pro regulation, is my understanding.
Well, the Republicans believe that there should be very few, if any, limits on money in politics. And unfortunately, they’re not even too wild about disclosure anymore. That used to be the part that everybody would agree on, that at least it ought to be out in the open. And Democrats believe that excessive funds in politics has the potential to corrupt the system and that some kind of reasonable regulation is necessary.
This ends up benefitting the side that doesn’t want to take action: the Republicans. And even when the commission can agree to hold someone accountable, these partisan rifts open up.
A good example of this is the Karen McDougal case. McDougal was a Playboy model who claimed she’d slept with Donald Trump. Back in 2016, she agreed to sell her story to American Media Inc., which owned a number of supermarket tabloids. But it turned out AMI was buying her silence to protect presidential candidate Trump. And that is a violation of campaign finance law.
AMI was ultimately held accountable. They entered into a nonprosecution agreement with the federal government in which they explained what happened under oath. And we were able to use that, which basically was an admission on their part that they had coordinated these payments with the Trump campaign, and they had made these payments to Karen McDougal in what’s known as a catch and kill. And in that case, because somebody admitted that they violated the law, even my Republican colleagues were willing to go after the National Enquirer for that.
And yet, when it came to the FEC, we were able to get the votes to go forward against AMI, but we were not able to get any votes to go forward against Trump or his campaign. It’s beginning to look like unless somebody comes in and actually confesses and admits that they broke the law, as AMI basically did, that it’s very hard to get four votes to move forward on anything.
That seems like a real problem.
Yes, I would agree with you. I believe it is a very serious problem. The standard for triggering an investigation is that there has to be reason to believe that the law has been violated or is about to be violated. And the Republican commissioners over the last number of years have been steadily raising the threshold on what it means to have reason to believe. A number of years ago, there was a bipartisan agreement on the commission that what that standard really meant was that there has to be reason to investigate, that you didn’t have to have conclusive proof that the law had already been violated in order to start an investigation, because otherwise the entire structure doesn’t make any sense. Congress gave us subpoena authority. Congress gave us resources to hire investigators and lawyers. And none of that would make any sense if we were never going to do any investigations and we were only going to try and negotiate penalties after somebody else had done the investigation and we were presented with conclusive proof. But in case after case, I have seen my Republican colleagues say, “Well, I just don’t believe it. I don’t have conclusive evidence that the law was violated. And if I don’t have that evidence in front of me already, how can I vote to start the investigation?”
It’s very frustrating. And it’s a clever legal trick that they use to avoid starting investigations. It sometimes has felt like I’m on a commission with hear no evil, see no evil, and speak no evil because they just don’t want to find the facts.
But here’s the thing: Since it takes four votes to close a case, even if all the Republicans want to shut things down, they need at least one Democrat to go along with them.
If you look at the case of Karen McDougal, you can see how a Democratic commissioner has some reason to play along with their Republican counterparts. They were fining the National Enquirer $187,000. That’s real money!
But there are other cases where Weintraub and her colleagues have got less to lose, and that’s opened up a brand new strategy for her. As long as she can convince her Democratic colleagues to hang together, as a bloc, they can keep the commission deadlocked, which comes with a benefit.
There is a second way for the law to get enforced that is built into the statute. If somebody files a complaint and they are not satisfied with what the commission has or hasn’t done—if we dismiss a case and they think that it was an arbitrary and capricious decision, or if we just fail to act—then the complainant can file a suit in federal court against the agency. And under the statute, it requires four votes to defend that suit and explain what the agency did or didn’t do and why. And I’ve just started not voting to defend that kind of litigation.
My understanding is that you’re keeping cases open like that, too. So they’re sort of on a simmer, but no one really knows what’s happening and there’s no decision.
That is another decision point. At some point, there has to be four votes to close the file before it can be made public. We have to agree to dismiss the case. And that requires people like me to say, “OK, I thought we should have gone forward, but if you guys don’t want to go forward, I’m just going to agree with you that we should just dismiss this case.”
It sounds like you are sick of doing that.
I am sick of doing that. I am tired of voting to dismiss cases that I think we should pursue. And this strategy gives me a little bit of leverage. It makes my colleagues have to think, at least. If we don’t work across the aisle and try and find some resolution that might get four votes, then we could run into a situation where we can’t close the file. They can’t count on me, and sometimes my colleagues, to agree with them. OK, you don’t want to go forward. We’re just going to dismiss this case. And then if we get sued over it, either because we have delayed it too long or because we have dismissed it and people think that we shouldn’t have, we will not necessarily agree to defend their position. It’s not my position that that ends up getting defended in court. It’s their decision. And it always works that way. I never get the benefit of this. It’s not like, well, sometimes you agree to defend their decision and then other times they agree to defend your decision. My decisions aren’t the subject of the lawsuits ever, because they are always the ones who are blocking enforcement of the law. Really, what’s my motivation to do that?
So when we chatted back in 2019, you told me the story of how the FEC got here. You talked about this moment in 2008 when a bunch of new commissioners were appointed all at once and the Republicans decided they were going to vote as a bloc and prevent a lot of things from being accomplished. One of those commissioners was Don McGahn, who later served as Trump’s attorney. What you’re doing here, it seems like exactly the same thing that really frustrated you when the Republicans did it a few years back. Do you see it that way?
I don’t really. But at a certain point, you have to fight fire with fire if nothing else works. If I cannot get people on the other side to say, “You’re right, we really ought to try and find four votes.” I have to use the small amount of leverage that I’ve got, the tools that are available to me to try and get people to work across the aisle to try and find that kind of consensus that I think the agency was designed for. The agency was designed for compromise. Some people say we were designed to fail because of the 3–3 split in commissioners. I think it was set up to compromise, but it was also set up with an acknowledgment by Congress that it might not work.
Your fellow commissioner Trey Trainor said in an interview that the Democrats were poisoning the well at the agency.
I’m poisoning the well?
He called the tactic an abuse of the process. What would you say to that?
It’s kind of like the person who kills his parents pleading sympathy for being an orphan with the court.
Well, I’ve been told I’m abusing the process. I think that’s also harsh. Everything that I’m doing is completely consistent with the statute. The commission does not have to defend the litigation. It could, for example, reexamine the decision that it made and say, “You know what, maybe we need to go back to the drawing board and see if there’s a better way forward here to avoid this litigation rather than blindly defending every single time we get sued.”
So you see that as a failsafe. He sees it as an abuse.
How can it be an abuse of the statute if it’s written into the statute? If they want four votes to defend the litigation, then maybe they should work harder to make sure that the original decisions that we are subject to suit on have the backing of four commissioners.
One former Republican commissioner wrote an op-ed talking about this new strategy you have, complaining about it. And one of his comments, which I thought was kind of interesting, was basically, why aren’t you, Ellen Weintraub, giving these new guys on the commission a chance? You’re complaining that there’s Republican obstruction. But, two-thirds of the GOP commissioners have served less than six months. The third’s barely been there a year. So, you barely know these guys. Why are you taking such a firm stance when they just got there?
Well, this only happens when there’s a 3–3 split. It’s not like this is happening in every case. I am happy to work with my colleagues on as many cases as we can get the votes to work together on. And there are cases that we are pursuing.
At each decision point, I have the evidence in front of me that demonstrates that at least in this case, they are not willing to work across the aisle. We are once again falling back into these same partisan split votes. And as I said, it’s not partisan because they are defending Republicans and we’re defending Democrats. They’re blocking enforcement of law against Democrats and Republicans. And I am trying to get the law enforced against Democrats and Republicans if they are alleged to have violated the law.
Do you think that an institution built on the idea that there are three Republicans, three Democrats can work in the same way that it worked 20 years ago, 40 years ago, or has something shifted there?
There’s no question that everything has become more partisan in Washington, right? It’s not just us, but if you’re going to see partisanship and polarization play out anywhere, it is absolutely going to be in an agency where you are evenly divided. And that has led to proposals that the entire structure of the agency needs to change because we can’t get our job done in this 3–3 system.
At this point, do you want to, like, burn it all down and start over?
I certainly have a lot of sympathy with the people who want to do that. I understand their frustrations. Believe me, no one is more frustrated than I am about the inability of the FEC to be a real cop on the beat and to seriously enforce the law. But what I’m trying here is something short of burning the place down. What I’m trying is to use the leverage that I have available to me to try and reel it all back a little bit, to impose some costs on the other side. And I’m sure that they are frustrated to discover that they don’t get to win every single time.
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