A Federal Election Commissioner’s Stages Of Grief

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While Democrats everywhere mourned election-night, Ellen Weintraub’s despair was more personal. Donald Trump’s upset likely meant her 14-year career as a Federal Election Commissioner would involuntarily end.

Experienced campaign lawyers jokingly refer to Weintraub as “Commissioner for Life.” Her term in office officially ended in April of 2007, but for nearly 10 years she has carried on as an “acting” commissioner, since Presidents Bush and Obama never replaced her.

But on January 20 her former FEC colleague Don McGahn, begins as White House Counsel. Weintraub’s personal animosity towards McGahn, who regularly bested her at the Commission, is no secret in the tiny campaign finance bar. She has regularly and publicly attacked McGahn since his 2013 FEC departure. Now that intemperance will likely haunt her.

If losing plum government jobs has stages of grief, Weintraub’s denial is now anger. In Sunday’s Washington Post, she lambasted McGahn for every Commission ill during his time there and since. Weintraub claimed McGahn “disdained the commission,” “promoted gridlock,” enabled corruption, fomented dysfunction, darkened the political process, refused to accept the law, and ignored opposing views.

Weintraub is a Democrat, but her party’s campaign finance lawyers do not share her macabre view of McGahn’s tenure. Marc Elias (counsel to Hillary Clinton), commented at the time of McGahn’s FEC exit, “Don has been one of the most consequential commissioners the FEC’s ever had. He has his supporters and he has had his detractors, but that’s largely because of how successful he has been as a commissioner in reframing important parts of the agency. . . . He often brought a perspective of the practical impact of the law on candidates and parties that was important.”

Bob Bauer, a former General Campaign Counsel and White House counsel to Barack Obama, called McGahn “a very strong lawyer. Tough minded, but not unreasonable.” Neil Reiff, another heavyweight Democratic campaign finance lawyer, co-authored a 2014 article with McGahn discussing the flaws of the McCain-Feingold campaign finance law.

Weintraub’s personal enmity for McGahn raises questions about her impartiality. She should consider recusing herself from any Trump campaign issues that come before the Commission.

Weintraub is subject to the Standards of Ethical Conduct for Executive Branch Employees, which states “Employees shall act impartially and not give preferential treatment to any private organization or individual.” By personally, and falsely, attacking McGahn as essentially corrupt, unethical, and intransigent, Weintraub reveals a disturbing bias against the incoming administration.

Weintraub also clings to a dated view of the Commission’s role. She entered the FEC at the apex of campaign speech regulation. In a trio of cases from 2000-2003 the Supreme Court allowed Congress nearly carte blanche ability to limit citizens’ political speech. But since 2007, the Court rediscovered First Amendment speech rights—most famously in Citizens United v. FEC.

While Weintraub accuses McGahn of refusing to accept the law, her actions show a disdain for Citizens United unbefitting her role. She penned an op-ed titled “Taking on Citizens United” where she seeks to “blunt its impact” with proposals that are almost certainly unconstitutional. She has absurdly misrepresented it as stating, “corporations are people” to sow public confusion. And she has used its guise to hold political-advocacy conferences at the FEC—making disturbing xenophobic overtures based on unproven charges that aliens might be influencing U.S. elections.

Her Citizens United animus has also blinded her to contradictory stances. She “worries a lot when corporations are involved in politics” calling it “counterintuitive” that a corporation can have political views. Yet she rails against the political influence of old, rich, white men in an ad for Ben & Jerry’s Ice Cream—a corporation founded by two old rich, white, men–that doubles as a call for democratic action.

Beyond disdain for Supreme Court rulings, Weintraub is loath to follow the FEC’s own regulations. For example, along with fellow Democrat Ann Ravel, Weintraub has repeatedly refused to apply the FEC’s decade old regulations exempting much internet activity from regulation. The regulation is valid. Weintraub simply no longer likes it.

In the past three years, Democrats have applied the internet exemption only once despite the myriad of issues involving online communications issues. Thus, it is Weintraub whose intransigence is fomenting dysfunction at the agency as she pines for pre-Citizens United time when the courts were permitting more government regulation of political speech.

Another FEC doctrine Weintraub often ignores is the media exemption. Over the past few years, she and the other Democrats have refused to apply the exemption to network debate rules, a documentary filmmaker, or a book publisher.

In Ms. Weintraub’s op-ed, she casts herself as the white-hat wearing reformer fighting “Big Money” while valiantly defending democracy. It is a familiar if tired refrain—Lois Lerner no doubt felt the same.

If Commissioner Weintraub wants to continue to play the hero, she should do so in the nonprofit world. The final stage of grief is acceptance. If she can’t reach this stage on her own, soon-to-be President Trump is likely to do it for her.

Paul H. Jossey is a campaign finance attorney and an Adjunct Fellow at the Center for Competitive Politics.