America’s Top Elections Official Isn’t Happy

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S1: The chair of the Federal Elections Commission the FEC. She’s got this tweet pinned to the top of her Twitter timeline. It’s the kind of statement you don’t often read on government letterhead. It’s stripped of formality and weasel words. It starts. Let me make something 100 percent clear to the American public. Then it continues. It is illegal for any person to solicit accept or receive anything of value from a foreign national in connection with a U.S. election.

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S2: Ellen Weintraub the FEC commissioner who wrote this statement she’s taken to tweeting it and retweeting it. Attaching one line. Editorials whenever she does one reads I would not have thought I needed to say this.

S3: Another says is this thing on when you get Ellen Weintraub on the phone though it’s a little bit of a different story.

S4: I just want to be really clear I am not going to say whether any individual has violated the law.

S5: I’m perfectly happy to explain the law. I think it’s important to explain the law.

S6: And I keep hoping somebody will hear me when I explain the law. They will decide to comply with the law. But I’m not going to say if anybody has violated the law.

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S7: It’s funny because you are simultaneously an incredibly careful person but really out there. Yeah. Well.

S4: I think there are things that I can say and things that I can’t say.

S1: One of the things she can’t say can’t even imply is that Donald Trump has done anything wrong by openly asking Ukraine and China to interfere with the U.S. presidential election even though if that’s true it should be pretty interesting to an agency like hers which was set up to meticulously track who funds and influences federal campaigns. You’re being very careful. But I read your tweets and I see your interviews and I think you have no patience for this moment.

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S4: Do you feel fed up I feel concerned. I think this is a really fraught moment for our democracy. Something that I care deeply about.

S1: So Weintraub can’t talk but there’s something else she also can’t act is foreign interference. The kind of thing the FEC would usually investigate.

S4: Yes. And we have.

S8: Could the FEC investigate right now. Not right now. It’s hard to hold people accountable when you don’t have a working enforcement process right.

S9: I wanted to start with like how is this supposed to work. Like in an ideal world that the FEC is saving the day what does that look like.

S10: Because I think a lot of people think they kind of know the FEC but they don’t know. Boy it’s been so long since we saved the day. You talking to Ellen Weintraub.

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S11: It became clear like a lot of people she’s frustrated with this moment with the individual actions of this administration that are driving the president closer and closer to a formal impeachment. But she’s also frustrated with something else the fact that agencies like hers should be able to help prevent what’s going on now.

S2: And instead her only remaining superpower seems to be her Twitter account today on the show Ellen Weintraub on life inside the FEC why she feels stunted and what that says about the way the rest of Washington is working. I’m Mary Harris. You’re listening to what next.

S1: Stick with us Ellen Weintraub has worked in Washington for decades and the fact that D.C. is hyper partisan right now that’s not what really bothers her. What really bothers her is that people in power don’t seem to respect the institutions they’re running. She looks around and she sees contempt for government by the government. Even at the agency she chairs the Federal Election Commission and that Ellen Weintraub says is new.

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S6: When I first started here there was a general consensus amongst all commissioners that in taking the job of commissioner at the FEC you are making a commitment to try and make the place work.

S1: The Federal Election Commission was created in the wake of Watergate as a way to monitor and rein in the way political campaigns were being funded. Six commissioners run the agency. No political party can have more than three commissioners at a time. Some people deride this setup as a design for deadlock.

S6: I think that’s wrong. I think it was a design for compromise and we did compromise. For years the agency actually kind of worked. I will acknowledge it was never the most aggressive enforcement agency in Washington but for the most part it worked. We could define the law. We could enforce the law. We could penalize violations of the law and the agency kind of worked when it worked. The FEC would turn along like this.

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S12: Someone makes a complaint. The agency’s lawyers take a look consider the facts. Consider the law and make a recommendation. Then the six commissioners sit down and vote on what to do. They might dismiss the complaint or investigate further if they think it’s clear the law was broken. They would start negotiating a penalty.

S13: Any of the recommendations that come forward from the counsel’s office have to be voted on by the commission and require four votes to pass. So even if we don’t have a full complement of commissioners let’s say it’s 3 to 2 because somebody resigned and they haven’t replaced that person. We still need four votes in order to proceed with any action.

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S14: It has to be bipartisan. How many do you have now. We have three. So that is not enough.

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S1: So if the FEC doesn’t work properly and it sounds like it might not be working properly right now what are the consequences. Well I think that as somebody who.

S15: Believes in rule of law when the rules are not enforced it leads to disrespect I think. I mean I used to be in private practice and I know the clients sometimes ask so you tell me I’m not supposed to do this. What’s going to happen to me if I do it anyway. Some people might feel like they can push the envelope and they’re probably not going to get punished for it. That’s a bad thing. You know we want to have free and fair elections we want to have transparent elections and that requires somebody who’s able to enforce the rules.

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S1: So talk to me a little bit about how we got here.

S6: What happened in 2008 to change how the FEC worked what happened in 2008 was that for the first time we had a massive turnover on the commission an entire slate turned over at the same time the all the Republican commissioners turned over and there were two new Democratic commissioners who came on board and the three Republican commissioners who came on board at the same time plainly had an arrangement that they were always going to vote together whereas before if one commissioner felt really strongly about an issue they might say you know what. On this particular point of law I am not willing to compromise. So the other five of you have a good time see what you can do. I’m out on this one. And and that was fine and it would be different. You know I did that sometimes my other colleagues did it sometimes there were there were just times when you don’t want to compromise. I get that. But what happened in 2008 was with three commissioners voting together all the time you could no longer have that situation where the person who’s most adamant and intransigent on an issue takes themselves out of the deal and lets their colleagues move forward. Now if I want to make a deal with the other side I’ve actually got to negotiate with the person who is most intransigent on the other side because that person is not going to let their colleagues make a deal without him or her that makes compromise a whole lot harder.

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S1: People have laughed off the FEC since it was created and you can see why. What other kind of regulatory agency has to sing Kumbaya. Quite like them. How vigilantly can you enforce the law when your actions are the product of compromise. But Ellen Weintraub says it was that massive turnover in 2008 that really kneecapped the agency with all those new commissioners coming on board.

S5: There was there was no one on the Republican side of the table who had been here before who had any fidelity to any of the decisions that were made before. And you know a lot of commissioners come on board for the first time and I think well everybody else did this wrong. I’m going to do it differently my way is going to be better. But that meant throwing out a lot of precedent and throwing out a lot of ways that the commission had moved forward in a productive way.

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S1: And one of the people who came on board was Don McGann who we all know if you’ve been following the Mueller investigation as someone who’s been a lawyer in the Trump White House but that’s now I’m wondering who he was then.

S5: Well who he was then was someone who had been a campaign finance lawyer for I think for the Republican Congressional Campaign Committee for Tom DeLay and for a number of other high profile Republicans and had very firm views on the law is pretty libertarian and a view in his views doesn’t really believe in the campaign finance laws. There is a wing of the Republican Party that believes that campaign finance laws in general violate people’s First Amendment rights to express themselves on politics.

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S7: Well it sounds a little bit like the fox guarding the henhouse.

S1: I mean I read one story that he took an FEC rulebook and ripped it up and threw it at you.

S16: Yes. And actually he was quite proud of being the fox guarding the henhouse. Somebody did a mock up of you know one last time magazine fake covers that you can order with a headline about him being the fox guarding the henhouse and I think he framed it and put it on his wall. He was quite proud of his role of coming here and being the guy who was going to up end the operations of the agency. Can you just take off for me a few of the things that changed in that time after 2008 because my understanding is that there was a lot of turmoil around what the FEC should be doing and whether it should be communicating with the Department of Justice and whether investigators should be Googling information about the.

S7: The things they were investigating Can you lay that out a little bit.

S16: Yeah. The Department of Justice is another enforcement agency. They have they have jurisdiction over criminal enforcement of the campaign finance laws. We have jurisdiction over civil enforcement of the campaign finance laws so there are times when one or the other of us will have relevant information. And in the new post 2008 era the Republican commissioners did not want anyone talking to the Department of Justice. None of our lawyers nobody unless they had specific permission from commissioners.

S5: Similarly it had been standard practice that in addition to looking at the complaints and responses are lawyers will look at publicly available information. They will Google the people they will read the newspapers the Republican commissioners said Well no. In order to look at the newspaper that’s an investigation that requires four votes to start. So unless you have permission from the commission you’re not supposed to read the newspapers and that’s just silly and is plainly intended to limit the investigations that we can start and undermines the operations of the agency and its very mission.

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S7: You know from the very beginning of Trump’s tenure you have been outspoken about him you know back in February he had just assumed office.

S1: He alleged that there’d been some kind of voter fraud in New Hampshire. And you tweeted at him and you said give me the evidence. This would be huge for the FEC. We would investigate but I think some people would look at this online back and forth which has continued to this day and say you’re a Democrat. You have been fighting against Republicans for a long time. I wonder how you would convince those people that you’re something other than a partisan actor.

S17: Well I am a Democrat. I don’t deny that I was appointed to a seat that is normally held by Democrats. So that is true. But what I care about. Is the process. I care about our democracy. I care about the integrity of our democracy.

S1: Later Weintraub called us back to explain more on this that she works at a bipartisan agency so of course yes her party registration is relevant but she doesn’t consider herself a party henchmen. She stands by her voting record at the FEC. She’s voted for investigations and penalties against Democrats as well as Republicans. But it almost doesn’t matter because the conflict at the FEC is in clannish in that way. It’s less partisan more principled. Democrats see a role for government to enforce campaign finance laws. Republicans not so much. Not anymore. Anyway the FEC wasn’t designed to withstand that kind of disagreement.

S18: What changed in 2008 was that three Republican commissioners had just a really strong ideological opposition to enforcing the law at all. So on virtually every single split vote regardless of who is the subject of the complaint. Democrat Republican. Doesn’t matter. The Democrats on the commission vote to go forward to investigate to try to enforce the law. And the Republicans vote to block it.

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S1: And the penalties really plummeted.

S18: As my understanding too they did they plummeted individually and they plummeted overall because we weren’t doing as many investigations and we weren’t concluding as many investigations. And you know that was part of the strategy was to purposely gum up the works. And sometimes my colleagues would talk for quite a long time. Former commissioner McGann was. He was famous for it. He could talk all day long and. It never really accomplished anything but it just gummed up the works and slowed down the process. And then you finally get to a matter even if it’s something that you finally authorize an investigation on now you’ve wasted so much time. It’s harder to find the evidence. People’s memories have faded. The documents have gotten lost. And then you’re bumping up against the statute of limitations. And then they say oh well it’s too close to the statute of limitations we can’t really do anything about that. Let’s just call it a day.

S7: Well so take me inside a meeting with Don McGann. Like what would you like pack a snack.

S19: I would need a snack. But no no I didn’t. I drink a lot of coffee. I usually faggot thermos of coffee. How.

S7: Talking like how long is this meeting.

S18: The meeting goes on all day. So you know we start in the morning and we keep going. We take a lunch break and then we come back and then it goes on for as long as people are willing to sit in the room and the in the old days the meetings would be over by lunchtime because we would only deal with the most critical issues in the formal meetings. And.

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S16: There’s a failsafe mechanism at the end of the day if we dismiss a case the person who brought the case can bring suit in federal court. If they don’t think that the decision was justified and sometimes the the courts have been helpful to the agency I often find myself oddly rooting for the agency to lose.

S19: Because I think that would better vindicate the law. Wow. That’s that’s a tough one.

S20: That’s hard. It is hard it is hard and it’s hard on the staff.

S16: They don’t like listening to us argue. They want to get clear direction from their bosses and they can’t get that because we disagree all the time.

S21: And at a time when the amount of money that people are spending is skyrocketing. So the amount of money that is being spent on our elections is going dramatically up at the same time the penalties are going down. Ellen why Traub thank you so much for joining me. Thank you it’s been a pleasure. Love the part. Ellen Weintraub is chair of the Federal Election Commission where she’s held the Democratic seat since 2002 and that’s the show.

S22: What next is produced by Mary Wilson. Jason De Leon Daniel Hewett and Maura silvers. On this episode we also had help from Stephanie de on set. I’m Mary Harris. Thanks for listening. We will talk to you tomorrow.