The Democrat Commissioners of Federal Election Commission (FEC) led by Commissioner Ellen Weintraub have introduced a new scheme that the Institute for Free Speech (Institute) has labeled as unethical and unconstitutional. The scheme attempts to delegate the enforcement of federal campaign finance laws to private parties, and does so by refusing to close case files and by refusing to allow prevailing parties to defend themselves when the Commission declines to investigate a claim.

The Institute for Free Speech announced today that it has urged two federal judges to put a stop to unethical legal gamesmanship by members of the Federal Election Commission.https://t.co/hzUl6db57f

— Institute for Free Speech (@InstFreeSpeech) August 18, 2021

The Federal Election Campaign Act (FECA) allows parties to sue if the FEC has not resolved a claim within 120 days. The Institute reports that Democrats often refuse to close case files in order to allow the 120-day trigger to come into effect, even where the cases are already resolved. The Institute's Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith responded to the strategy:

The FEC's Democrats are misleading the courts and abandoning the duties of their office in an unprecedented way. The FEC has resolved these cases, but it's hiding them from the court, the public, and even the targets of the complaint.

Moreover, FEC Democrats are "refusing to allow the agency to defend its decisions in court." The Institute is concerned that judges are granting default judgments without being informed of the Commission's actions or the basis of its actions, which "effectively sidelines the FEC and outsources the enforcement of campaign finance law to private groups with partisan agendas."

The Institute further writes:

This scheme gives commissioners on the losing side of a bipartisan decision a second chance to see their preferred outcome enacted via one-sided litigation brought by activist groups. It also puts Americans who have been cleared by the Commission of wrongdoing at risk of private litigation.

FEC Commissioner Sean Cooksey recently highlighted an example of this phenomenon on Twitter:

You can read my statement of reasons on the underlying matter with Vice Chair Dickerson here: https://t.co/8QmNYeANJp

— Sean Cooksey (@SeanJCooksey) August 12, 2021

The Institute has taken action against the scheme by filing amicus briefs in the pending litigation. The briefs—here and here—allege that the scheme:

(1) violates the [Fifth Amendment] Due Process rights of respondents to FEC complaints, (2) is an abuse of the Commission’s discretion, (3) circumvents FECA’s complaint adjudication process, (4) causes the FEC to abdicate its responsibility to enforce federal campaign finance laws, and (5) manipulates the judicial process.

The Institute is urging judges to reject the scheme and deny default judgments if they are unable to review the administrative records that served as the basis for a vote. The Institute for Free Speech is justified in its concern about the Weintraub scheme, as it threatens the impartiality and fairness of the administration of the FEC's most important duty—to enforce campaign finance laws across the country.

We agree with the Institute, federal courts should reject attempts to "zombify" the FEC by Democrat Commissioners.