Weintraub Will Not Allow FEC to Defend Itself in Court

Yesterday, Mother Jones reported that current FEC Chair Ellen Weintraub has decided to vote against allowing the FEC to defend its positions in court.  Because the FEC currently only has four members and the affirmative votes of four members are required for the FEC to take any official action, this means that Chair Weintraub will prevent the FEC from appearing in court to defend its position.  

Why is she taking this position?  Because she does not approve of the Republican commissioners following the campaign finance laws as written, she wants to give the courts more power to re-write campaign finance laws to heighten regulation of political speech.  And in what has become the favorite trope of the so-called "reform" community, she wants to highlight the "dysfunction" of the FEC.  What this "dysfunction" really means is enforcing the laws as written and the law governing FEC operations that require a minimum of bipartisan consensus.

The FEC is composed of six commissioners, three Republicans and three Democrats.  Four votes are required for any action so that a minimum of bipartisan consensus must be reached before the FEC takes any action, to prevent the FEC being used as a partisan weapon to restrict the political speech of the opponents of the party currently in power.  Instead of seeing this as a feature of the agency, many Democrats and the "reform" community see it as a bug and have been trying for years to turn the FEC into a partisan entity controlled by the President's party.  A partisan FEC has been an element of the perennial DISCLOSE Act and is part of the vast expansion of political speech regulation in HR 1.  As former FEC Commissioner Brad Smith writes (in his extensive analysis of this part of HR 1 that is worth reading):

Although critics claim that tie-votes sap the FEC’s ability to enforce campaign finance laws, in fact, it is assuredly the opposite. The only reason that the FEC has any legitimacy is its bipartisan makeup. Particularly in the current environment, it is inconceivable that an agency empowered to make prosecutorial decisions about the legality of campaign tactics, communications, funding, and activities on a straight party-line vote would have any legitimacy. . . .

The FEC “reform” provisions tucked into the “For the People Act” would, if enacted, abolish a bipartisan commission in favor of one under partisan control and beholden to the president, do away with checks and balances within the Commission, attempt to bias judicial proceedings against respondents, and hamstring the efficient operations of the agency. On the basis of this section of H.R. 1 alone, members of Congress and the public would be well-served to carefully scrutinize this legislation.

Another aspect of the FEC's alleged "dysfunction" is that it currently only has four members.  Traditionally, FEC nominees have been paired with one Democrat and one Republican being considered and voted on at the same time.  All the way back in September 2017, President Trump nominated a Republican, James "Trey" Trainor of Texas, but so far Minority Leader Chuck Schumer has refused to select a Democrat to pair with him.  So, while Democrats and the "reform" community complain about the vacancies on the FEC, they refuse to do anything about it.  This is part of their larger strategy, evidenced by Chair Weintraub's statements yesterday, of hampering the FEC's operations in the hope of bolstering their "dysfunction" narrative and pushing through changes like turning it into a partisan body.