FEC’s Commissioner, Weintraub, Flagrantly Abusing Power

Michael Thielen Executive Director, Republican National Lawyers Association
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The Trump Administration, from its inauguration, has faced remarkable partisan opposition even from people who work for, and purport to speak for, the government. These partisan “resistance” operatives inside the government often operate anonymously, through “alt” Twitter accounts, but some have gone public with their opposition to President Trump.

So it is with Democrat Commissioner Ellen Weintraub of the Federal Election Commission (FEC), the agency responsible for oversight and regulation of campaign finance issues; or, to use the vernacular, money in politics.  The FEC is made up of 6 commissioners holding Republican and Democrat positions who each carry their own personal opinions and biases — much like Supreme Court justices — but who, at least in theory, work to apply campaign finance law as objectively as possible. However, unlike the Supreme Court, the FEC, with its even number of commissioners, requires minimum bipartisan consensus to take any action, keeping obvious partisanship from winning the day.

Commissioner Weintraub has been championing brazen partisanship inside a federal agency bound by law and the legal scope and jurisdiction of the agency. What was it created to do?  Administer and enforce the Federal Election Campaign Act (FECA), which regulates the spending and contributing of money in federal elections.  It has limited jurisdiction and does not have broad power over all aspects of federal elections.  Specifically, according to the FEC itself, it does not have jurisdiction over claims of vote fraud, voting rights, election integrity, or election security.

Weintraub’s campaign against the President, using FEC time and resources, has been going on for months.  Weintraub wrote a letter back in May, after Trump suggested there was vote fraud in the 2016 election and that Kelly Ayotte’s losing bid in New Hampshire may have been due to election meddling, demanding Trump explain himself and offer proof for his claims.  (It should be noted that Weintraub was silent when the New Hampshire Secretary of State announced that almost 500 people may have voted illegally.)

An anti-Trump twitter feed, altFEC, is rumored to be sponsored by Weintraub’s personal staff with her knowledge and support.   Rudy Takala of The Hill publicly called out her office — but she would not deny it.  

Most recently, Weintraub has begun actively lobbying her colleagues on the FEC to consider involving themselves in a probe of “the reported attempts of Russia to influence the 2016 U.S. presidential election.”  Weintraub declared in a bid to her fellow commissioners: “Every part of our government that has jurisdiction over these issues must exercise every scrap of its jurisdiction as fully as it can. . . . The FEC must find out the facts of what happened during the 2016 U.S. presidential election and move swiftly and firmly to fix any problems we find.”

Weintraub then requests that the FEC receive briefings on other agencies’ investigations, examine its enforcement practices, assure the public that FEC databases are secure, begin rule-making regarding corporate spending in politics, consider other rulemaking, and consider making recommendation to Congress. 

FECA prohibits foreign nationals from making contributions directly or indirectly in federal elections, and the FEC is charged with enforcing that prohibition.  These requests could be an important part of the FEC carrying out that duty, if not for the incendiary rhetoric of the rest of Weintraub’s memo to her fellow commissioners (and the Democrat commissioners’ history of attempting to use the foreign contribution prohibition to attack money spent by corporations with foreign affiliates).  The rest of the memo makes clear that Weintraub views this as only another front to attack the Trump Administration, in hopes of finding some smoking Russian gun to bring down President Trump.  If the FEC acted as Weintraub demands, it could vastly, unilaterally expand its jurisdiction and infringe on the jurisdiction of other federal agencies, Congress, and the states.

The FEC placed Weintraub’s request on the agenda for its June 22 meeting but tabled it for future consideration. 

There is no doubt Weintraub in her vocal anti-Trump fanaticism is overstepping her mandate as an FEC commissioner. Government accountability watchdog Cause of Action recently requested an investigation of Weintraub for her flagrant abuse of power. They charge that Weintraub is improperly using FEC time, resources, and reputation to carry on her partisan hunt to find something with which to damage the young Trump presidency.

“Pursuant to [Office of Government Ethics regulations], Commissioner Weintraub may only use FEC property and act in her official capacity for purposes that advance the FEC mission as authorized by law. . . .,” Cause of Action’s petition reads. “In compliance with its authorizing statute, the FEC website describes its jurisdiction as being limited to ‘the financing of campaigns for the U.S. House, the U.S. Senate, the Presidency and the Vice Presidency. . . .’”

Cause of Action points out that Weintraub is aware of the FEC’s limited jurisdiction, as evidenced by her tweets, and she should be well aware that investigations of voter fraud and potential state criminal activity are outside that jurisdiction.

Why then would Weintraub, in violation of the scope of the agency, go on a public campaign to delegitimize the president’s claims of vote fraud and participate in the media’s Russia hysteria, using FEC time, resources, and authority to do it?

Former FEC Chairman Brad wrote recently that Weintraub should resign immediately because her attacks against Trump and his White House Counsel Don McGahn are in danger of jeopardizing the real work and mission of the FEC.

“Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . . For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding.”

Smith goes on from there to describe the often silly and unprofessional behavior Weintraub has exhibited in her crusade against Trump.  Weintraub’s antics are embarrassing enough for a once-respected agency with a reputation for, if not pure impartiality, the ability to get the work done in spite of political differences.

Now, Weintraub threatens to make it nearly impossible for the FEC to remain impartial on any matter regarding President Trump.  While disclaiming that she has prejudged anything, she has already said “there is a potential for finding a violation” in allegations regarding the Trump presidential campaign and Russian payments for online ads.  As Republican FEC Commissioner Lee Goodman has said: “We are a law enforcement agency at the end of the day, and we must be strictly impartial and neutral in how we approach cases, not just in actuality but in the appearance of how we conduct ourselves.”

Americans have the option of turning off the talking heads when they begin to express their personal political biases. They do not have that option with the appointee of a federal agency, especially one that directly controls those spending money and speech in federal political campaigns. Weintraub has been on the FEC since 2002, staying over long after the end of her six-year term.  She should regain her professional dignity and ethics and resign from the FEC.