Dark Money comes to the Federal Elections Commission
By Karl Evers-Hillstrom Ι Center for Responsive Politics
March 10, 2020
Trey Trainor, President Donald Trump’s Republican nominee to the Federal Election Commission, tried to quell concerns from Democrats and some good government groups Tuesday that he would avoid enforcing campaign finance law if confirmed.
During his nomination hearing, Trainor said he believes political donors should be disclosed despite his past support for secret election spending. The Texas lawyer vigorously defended a “dark money” group from state regulators and previously invoked the Federalist Papers to defend undisclosed political spending.
Trainor followed that statement by indicating he would abide by the FEC’s current system of tackling undisclosed election spending. He told senators the commission has a “disclosure regime in place for donors to nonprofit organizations that may engage in independent expenditures.” That doesn’t tell the whole story.
The FEC did craft guidance attempting to force politically active nonprofits to disclose their donors after a court ordered them to do so. But the new rules have been completely ineffective. Nonprofit groups, including Democratic powerhouse Majority Forward, avoid disclosing their donors by simply telling the FEC they don’t receive contributions for political purposes. Groups that don’t disclose their donors spent nearly $1 billion over the last decade and are already influencing 2020 contests.
If confirmed, Trainor would give the FEC the fourth commissioner it needs for the quorum necessary to function, at least on paper. The commission is supposed to have six members, with only three from the same party. Any action requires four votes, leading to deadlock when Republicans and Democrats disagree.
In recent years, Republican commissioners have voted to shut down most investigations into dark money spending and allegations of unlawful coordination between political campaigns and outside groups. They’ve argued that the commission must be presented with strong evidence that a violation occurred before further investigating, even in cases involving Democratic candidates. Democrats argue Republicans aren’t enforcing the law, as the commission only needs to establish “reason to believe” that a violation occurred.
Trainor also indicated he would need to see considerable evidence before voting to advance investigations. “I believe that there has to be credible and valid evidence presented to the commission that falls squarely within the statutory requirements to show the statute itself has been violated,” he said.
Trainor’s nomination is opposed by several good government groups, including the Campaign Legal Center and Issue One. Those organizations, which advocate for stricter campaign finance laws, say Trainor would block critical investigations.
The FEC has been without a quorum for more than six months. In that time, nearly 300 cases sit unresolved. Trump has not nominated anyone to fill the other two open seats. Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday he wants to replace the entire commission with six new members.
If the Republican-controlled Rules and Administration Committee advances Trainor, he could be confirmed by a simple majority in the full Senate. Some Democratic senators signaled they will oppose Trainor, with Senate Minority Leader Chuck Schumer (D-N.Y.) arguing he would encourage “big dark money in our politics.” Democratic senators criticized Republican senators for taking up Trainor’s nomination without an accompanying Democrat, a longstanding tradition.
Democrats also pressed Trainor, an advisor to Trump’s 2016 campaign, over whether he would recuse himself from matters involving Trump. Trainor said he would consult with career ethics officials on a case-by-case basis.
Sen. Roy Blunt (R-Mo.), chairman of the Rules and Administration Committee, said the Senate should prioritize restoring the committee’s quorum for now.
“We hear a lot about the FEC and its deadlocked decisions, its inability to get things done, but without a quorum the FEC can do exactly nothing,” he said.