In Tuesday’s New York Times, Shane Goldmacher reported on the latest tactic by Democrats on the Federal Election Commission to punish more Americans for exercising free speech rights: deadlock enforcement votes, conceal the agency action from the public, and then default the agency in federal court. The Democrat strategy entails concealing from federal courts that the agency has decided matters on the merits in order to mislead federal judges into thinking the agency has failed to act in a timely manner and thereby trick federal judges into authorizing private enforcement lawsuits by liberal activist groups against conservatives.
Here is what has been happening behind closed doors, according to people familiar with the commission’s private executive sessions: First, the Democrats are declining to formally close some cases after the Republicans vote against enforcement. That leaves investigations officially sealed in secrecy and legal limbo. Then the Democrats are blocking the F.E.C. from defending itself in court when advocates sue the commission for failing to do its job. . .
But the new maneuver drastically accelerates and smooths the way for outside groups to pursue campaign finance challenges in the federal courts — a far less predictable and partisan place. Instead of waiting for years for the commission to deadlock, and then filing long-shot lawsuits to appeal the F.E.C.’s split decision, the law allows advocates to sue the commission far sooner for defaulting in its basic duties. Then, because the agency isn’t defending itself in those lawsuits, groups have a mostly clear path to sue candidates and campaigns directly.
NEW: For a decade+, Democrats who want robust election-law enforcement have been on the losing end of tie votes at the FEC.— Shane Goldmacher (@ShaneGoldmacher) June 8, 2021
Now they have an improbable new strategy: Even more deadlock so the courts basically take over for the dysfunctional agency… 🧵https://t.co/CY5G1RWanL
RNLA board member Lee Goodman told The Times:
Lee E. Goodman, a Republican former F.E.C. chairman who stepped down in 2018, said the tactic amounted to “sandbagging federal judges” by making them believe deadlocked cases are unresolved. “While we can admire it in its creativity, it fundamentally rests on a dishonesty,” he said.
Members of the Commission have raised alarm in the past about the body being manipulated to serve outside groups' purposes, and they continue to do so now.
The Republican commissioners are livid. Commissioner Sean J. Cooksey has warned his Democratic colleagues that they are going down “a very, very dark road” and revealed in a recent memo that there are now 13 such unclosed cases, calling them “zombie matters — dead but unable to be laid to rest.” Commissioner Trey Trainor said in an interview that the Democrats were “poisoning the well” at the agency with a tactic that he said was “an abuse of the process.”
The deadlock from Democrat Commissioners comes in the broader context of congressional Democrats and the Biden Administration wishing to radically transform the FEC into a partisan body.
RNLA applauds the Republican members of the FEC for speaking out against the strategy to deadlock the Commission to achieve partisan goals.