For more than a decade, the U.S. campaign watchdog agency has been a portrait of dysfunction. Split evenly between three Republicans and three Democrats, the Federal Election Commission found itself deadlocked so often that it became a political critic as investigations dragged on, enforcement slowed and guidelines Updates for the Internet age were at a standstill.
Today, the commission was suddenly unblocked.
In a series of recent decisions that are reshaping the landscape of money in American politics, a new ascendant bloc of three Republicans and one Democrat are voting together to lower limits on how politicians, political parties and super PACs collect and spend money.
Reform groups are dismayed by what they see as a rapid lifting of long-standing restrictions. Conservatives who have dreamed of easing restrictions for years are thrilled, even though many of the decisions were sought by one of the Democratic Party’s most prominent lawyers, Marc Elias, who sought political advantage and clarity for his clients.
Those on both sides of the ideological divide agree on one thing: These changes constitute some of the most significant regulatory overhauls since the campaign finance law, the McCain-Feingold Act, was put in place two decades ago.
“These decisions constitute a monumental change in commission law,” said Sean Cooksey, Republican chairman of the Federal Election Commission. “The deregulators win. »
A new swing vote
At the center of the change is Commissioner Dara Lindenbaum, a Democrat who has crossed the aisle multiple times to vote with her Republican colleagues since President Biden nominated her and she was nominated. confirmed by the Senate in a 54-38 vote in 2022. The rift within the once-unified bloc of Democrats became so tense that at one point an actual olive branch, purchased on Etsy for $16, was offered as a peace offering – and was rejected.
“We are in a new era,” said Adav Noti, executive director of the Campaign Legal Center, which advocates for stricter interpretation and enforcement of the law. “The speed with which the rules are being torn down is astonishing. There has been more activity in the last two years to get money into the system than in the previous 20 years combined.
A decision this spring that is already reshaping the 2024 presidential race has for the first time allowed super PACs and campaigns to work together to plan and execute costly door-to-door canvassing. Politicians were previously barred from coordinating with super PACs, which can raise unlimited amounts of money, to restrict megadonors’ influence over candidates.
But the commission ruled that canvassing work was exempt because it did not amount to “public communications,” allowing politicians and super PACs to work more closely than ever before.
Another recent decision allowed federal candidates, for the first time, to raise unlimited funds for state-level ballot measures.
The commission ruled that a wealthy donor could place money in a trust that could then distribute their donations to campaigns — while keeping the original source anonymous. And it ruled in 2022 that certain types of mass text messages also did not constitute “public communications,” subjecting them to fewer restrictions.
All of these decisions – and many others – were settled by a 4-2 vote, with Ms. Lindenbaum as acting commissioner.
“It’s inexplicable and it’s staggering,” said Sen. Sheldon Whitehouse, a Rhode Island Democrat who is one of his party’s leading voices in favor of reducing the influence of money in politics. At first, Mr. Whitehouse said, he hoped that Ms. Lindenbaum would concede tactically to achieve other “strategic victories” in return. But not anymore. “We don’t see any signs that this is a horse-trading,” he said. “It seems more like a simple surrender.”
” Taken by surprise “
In a wide-ranging interview, Ms. Lindenbaum downplayed both her role and the scale of the decisions. “I don’t think they necessarily shake things up,” she said. Rather, she said, she was simply following the law and formalizing what was happening in practice, such as with a 4-2 decision that members of Congress could legally use their PACs for their own personal benefit. .
“We don’t need to try to expand the scope of the law to cover activities that we consider bad or disgusting,” she said. “What the law says and what some people would like it to say are different. »
At first glance, Ms. Lindenbaum would seem to be a surprising apostate for the left. She once paraded with Code Pinkthe left-wing anti-war group, and later served as a leading advocate for Stacey Abrams, the former progressive candidate for Georgia governor, and her voting rights group.
“She came from the progressive community, so I think everyone was taken by surprise,” said Craig Holman, a lobbyist for Public Citizen, a consumer advocacy group.
But it is Ms. Lindenbaum’s work on election campaigns, where lawyers sort through the gray areas of the law to decide what can and cannot be done, that her supporters and detractors say has informed her thinking. .
Lindenbaum said her perspective as a lawyer representing politicians facing “ridiculous” allegations of wrongdoing was valuable to the commission. “I have the practical experience and I can explain why someone did something the way they did,” she said.
Mr. Noti said he had been reluctant to air his grievances publicly with Ms. Lindenbaum for fear it would lead to backlash. When she was a private attorney, she objected, through a mutual acquaintance, to a public comment Mr. Noti had made about one of his clients.
“I thought it was possible that speaking out might make things worse instead of better,” he said. “But with the recent series of decisions, I’m not sure what could be worse.”
Jason Torchinsky, a Republican elections attorney, welcomed the flurry of recent rulings.
“Many of the issues facing the FEC require practical applications of campaign finance law, and Commissioner Lindenbaum brings that to the commission through her years as a day-to-day lawyer in this area,” he said. -he declares.
The real olive branch
There were brief periods of civility within the commission, created in the wake of the Watergate scandal. But for 15 years, the agency was defined by 3-3 impasses on apparently everything.
Donald F. McGahn II, who became commissioner in 2008 and later President Donald J. Trump’s top White House adviser, imposed discipline on the Republican bloc upon his arrival. The Democratic opposition leader became Commissioner Ellen Weintraub, who has served on the commission since 2002.
The dysfunction was so bad that in 2021 Ms. Weintraub pushed Democrats to pass the unusual tactic of refusing to close stalled investigations in the hope that the commission would be prosecuted for inaction. The Democratic bloc then refused to send lawyers to defend the agency in court.
Ms. Lindenbaum revealed this strategy almost immediately, providing the fourth vote to close all of these cases, some of which dated back to 2016.
It was the start of what many people described as a frosty relationship between Ms. Lindenbaum and Ms. Weintraub, even though both were Democrats. Tensions were particularly high with Ms. Weintraub’s longtime lawyer, Tom Moore.
At some point in late 2022, Mr. Moore ordered a real olive branch on Etsy and gave it to Ms. Lindenbaum as a gift at a Christmas party. He attached a handwritten letter seeking to repair relations.
“I was sincere,” Mr. Moore said.
He never got an answer.
Ms Lindenbaum said it would be inappropriate to discuss another commissioner’s aide in detail, but said of the episode: ‘Forgiveness only comes with genuine apologies and genuine recognition mistakes. And if I don’t have a real acknowledgment of fault, an acknowledgment of what was done to provoke the apology, it’s not an apology. And I won’t accept it.
Mr. Moore, who declined to comment on Ms. Lindenbaum’s response, left the commission in 2023 and watched in frustration as it moved from gridlock to deregulation.
“When nothing happens, nothing bad happens,” said Mr. Moore, now a senior fellow at the Center for American Progress. “Now bad things are happening.”
Among Republicans, the reception given to Ms. Lindenbaum was warmer. Mr Cooksey said he bonded with her because of their past work in politics and being parents to young children.
“I doubt there is a single dominant policy issue that we agree on,” he said. “But I think we both agree that the current campaign finance system is cumbersome, overly complicated and often unfair.”
Ms. Lindenbaum said she was fighting for more funding for agencies and pushing for Congress to remove donor mailing addresses from online contribution records.
Outside watchdogs are concerned about the slow pace of investigations. A little-noticed footnote in a recent statement from Ms. Weintraub revealed that the attorney general’s office was actively pursuing only three investigations nationwide.
“Dara transformed the FEC from dysfunctional to functionally avoiding enforcement,” Mr. Holman said.
A partisan turn
A surprising common thread in many of Ms. Lindenbaum’s most important decisions is that they were sought by Mr. Elias, who has become the face of voting rights litigation on the left.
But on the commission, Mr. Elias is better known for pushing to ease financial restrictions for his Democratic clients. That includes seeking new rules allowing super PACs and candidates to coordinate canvassing, allowing federal officials to raise unlimited amounts of money for ballot measures and relaxing rules on text messaging.
His role reveals a significant ideological divide on the left between those who oppose the influence of money and practitioners who want to elect more Democrats.
“Some advocacy groups are fighting on what-ifs,” Mr. Elias said. “They’re regulating for things that aren’t real.”
Interestingly, the campaign arm of Senate Republicans lobbied against some of the looser rules that Mr. Elias had successfully pushed for, warning against sweeping changes in an election year.
“The campaign finance system has to work,” Mr. Elias said, praising Ms. Lindenbaum for providing “clear guidelines.”
What Democrats and Republicans are keenly aware of is that Ms. Lindenbaum’s term extends through 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?”
