How the Federal Election Commission Went From Deadlock to Deregulation

How the Federal Election Commission Went From Deadlock to Deregulation

For more than a decade, America’s campaign watchdog agency was a portrait of dysfunction. Divided equally between three Republicans and three Democrats, the Federal Election Commission deadlocked so often it became a political punchline as investigations languished, enforcement slowed and updated guidelines for the internet era stalled.

Now, the commission has suddenly come unstuck.

In a series of recent decisions that are remaking the landscape of money in American politics, an ascendant new bloc of three Republicans and one Democrat is voting together to roll back limits on how politicians, political parties and super PACs raise and spend money.

Reform groups are aghast at what they see as the swift unraveling of longstanding restraints. Conservatives who for years have dreamed of loosening restrictions are delighted, even though many of the rulings were sought by one of the Democratic Party’s most prominent attorneys, Marc Elias, who was seeking political advantage and clarity for his clients.

Those on both sides of the ideological divide agree on one thing: The changes amount to some of the most significant regulatory revisions since the campaign finance law, the McCain-Feingold Act, was put in place two decades ago.

“These decisions are a monumental shift in the law at the commission,” said Sean Cooksey, the Republican chairman of the Federal Election Commission. “The de-regulators are winning.”

At the center of the shift is Commissioner Dara Lindenbaum, a Democrat who has repeatedly crossed the aisle to vote with her Republican colleagues since President Biden appointed her and she was confirmed by the Senate in a 54-38 vote in 2022. The rupture inside the once-unified bloc of Democrats has gotten so tense that at one point an actual olive branch, procured on Etsy for $16, was given as a peace offering — and was rejected.

“We are in a new era,” said Adav Noti, executive director of the Campaign Legal Center, which pushes for stricter interpretation and enforcement of the law. “It is breathtaking the speed with which the rules are being torn down. There has been more activity in the last two years to allow money into the system than in the 20 years before that combined.”

One decision this spring that is already reshaping the 2024 presidential race allowed super PACs and campaigns for the first time to work together to plan and execute costly door-to-door canvassing operations. Politicians had previously been forbidden from coordinating strategy with super PACs, which can raise unlimited amounts of money, to restrain the influence of megadonors on candidates.

But the commission ruled that canvassing work was exempt because it did not amount to “public communications,” freeing politicians and super PACs to work more closely than ever.

Another recent ruling permitted federal candidates, for the first time, to raise unlimited money for state-level ballot measures.

The commission decided that a wealthy donor could put money into a trust that then could distribute donations to campaigns — while keeping the original source anonymous. And it ruled in 2022 that certain types of mass text messages did not constitute “public communications” either, subjecting them to fewer restrictions.

All of those decisions — along with numerous others — were settled on a 4-2 vote, with Ms. Lindenbaum as the swing commissioner.

“It’s inexplicable and it’s stunning,” said Senator Sheldon Whitehouse, a Rhode Island Democrat who is one of his party’s leading voices for curbing the influence of money in politics. At first, Mr. Whitehouse said, he hoped Ms. Lindenbaum was tactically yielding to notch other “strategic victories” in return. But no longer. “We don’t see any sign that this is horse-trading,” he said. “This looks more like just surrender.”

In a wide-ranging interview, Ms. Lindenbaum downplayed both her role and the sweep of the decisions. “I don’t see them as necessarily moving the needle,” she said. Rather, she said, she was simply following the law and formalizing what had been happening in practice, such as with one 4-2 ruling that members of Congress could legally use their PACs for their own personal benefit.

“We don’t need to try to broaden the scope of the law to cover activities that we find to be bad or icky,” she said. “What the law says and what some people might wish the law says are different.”

At first blush, Ms. Lindenbaum would seem a surprising apostate for the left. She once marched with Code Pink, the left-wing antiwar group, and later served as a top lawyer for Stacey Abrams, the progressive former candidate for Georgia governor, and her voting-rights group.

“She came from the progressive community, so I think everyone was caught by surprise,” said Craig Holman, a lobbyist for Public Citizen, a consumer-advocacy group.

But it is Ms. Lindenbaum’s work in the trenches of campaigns, where lawyers sort through the law’s gray areas to decide what can and cannot be done, that her supporters and detractors alike say has informed her thinking.

Ms. Lindenbaum said her perspective as a lawyer who represented politicians who faced “ridiculous” allegations of wrongdoing was valuable to the commission. “I have the practical experience and I can explain why somebody did something a way they did,” she said.

Mr. Noti said he had been hesitant to air his grievances with Ms. Lindenbaum publicly, lest it lead to backlash. Back when she was a private attorney, she objected through a mutual acquaintance to a public comment Mr. Noti had made about one of her clients.

“I have thought there was a potential that speaking out could make things worse rather than better,” he said. “But the recent set of rulings — I’m not sure what worse would look like.”

Jason Torchinsky, a Republican elections lawyer, hailed the spate of recent decisions.

“Lots of things facing the F.E.C. call for practical applications of campaign finance law, and Commissioner Lindenbaum brings that to the commission from her years as a day-to-day lawyer in the field,” he said.

There have been brief periods of comity at the commission, which was created in the wake of the Watergate scandal. But for 15 years, the agency was defined by 3-3 gridlock on seemingly everything.

Donald F. McGahn II, who became a commissioner in 2008 and later was President Donald J. Trump’s first White House counsel, imposed discipline on the Republican bloc when he arrived. The leader of the Democratic opposition became Commissioner Ellen Weintraub, who has served on the commission since 2002.

The dysfunction was so bad that by 2021, Ms. Weintraub pushed the Democrats to adopt the unusual tactic of refusing to close stalled investigations in hopes the commission would get sued for failing to act. The Democratic bloc then refused to send lawyers to defend the agency in court.

Ms. Lindenbaum unraveled that strategy almost immediately, providing the fourth vote to close all of those cases, some of which dated to 2016.

It was the beginning of what multiple people said was a frosty relationship between Ms. Lindenbaum and Ms. Weintraub, though both are Democrats. Tensions ran especially high with Ms. Weintraub’s longtime counsel, Tom Moore.

At one point in late 2022, Mr. Moore ordered an actual olive branch on Etsy and gave it to Ms. Lindenbaum as a present at the commission’s holiday party. He attached a handwritten letter seeking to reset relations.

“I was sincere,” Mr. Moore said.

He never heard back.

Ms. Lindenbaum said it would be inappropriate to discuss another commissioner’s aide in detail, but said of the episode: “Forgiveness only comes with a true apology and a true recognition of faults. And if I don’t have a true recognition of faults, acknowledgment of what was done to bring about the apology, it is not an apology. And I will not accept it.”

Mr. Moore, who declined to comment on Ms. Lindenbaum’s response, left the commission in 2023 and has watched in frustration as it has moved from deadlock to deregulation.

“When nothing’s happening, nothing bad is happening,” said Mr. Moore, now a senior fellow at the Center for American Progress. “Now bad things are happening.”

Among Republicans, Ms. Lindenbaum’s reception has been warmer. Mr. Cooksey said he bonded with her over their past work in politics and over being parents of young children.

“I doubt that there is a single mainstream policy issue that we agree on,” he said. “But we, I think, do both agree about how the current campaign finance system is burdensome and overly complicated and often unfair.”

Ms. Lindenbaum said she was fighting for more agency funding and pushing for Congress to strip the street addresses of donors from online contribution records.

Outside watchdogs worry about the slow pace of investigations. A little-noticed footnote in one recent statement by Ms. Weintraub revealed that the general counsel’s office was actively conducting only three investigations nationwide.

“Dara has turned the F.E.C. from dysfunctional to functionally avoiding enforcement,” Mr. Holman said.

One surprising thread through many of Ms. Lindenbaum’s most consequential decisions is that they were sought by Mr. Elias, who has become the face of voting-rights litigation on the left.

But at the commission, Mr. Elias is better known for pressing to loosen restrictions on money for his Democratic clients. That includes seeking the new rules allowing super PACs and candidates to coordinate canvassing, allowing federal officials to raise unlimited sums for ballot measures and loosening rules on text messaging.

His role reveals an important ideological divide on the left between those who oppose the influence of money and practitioners who want to elect more Democrats.

“Some of the advocacy groups — they are fighting over hypotheticals,” Mr. Elias said. “They are regulating for the thing that isn’t real.”

Interestingly, the campaign arm of the Senate Republicans lobbied against some of the looser rules that Mr. Elias successfully sought, warning against making sweeping changes in an election year.

“The campaign finance system has to work,” Mr. Elias said, praising Ms. Lindenbaum for providing “clear guideposts.”

What Democrats and Republicans are both keenly aware of is that Ms. Lindenbaum’s term runs all the way until 2027. “We’re not done,” Mr. Cooksey said.

“Who would have thought,” said Mr. Whitehouse, the Democratic senator, “deadlock and dysfunction would be the good old days?”

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