[Senate Hearing 116-195]
[From the U.S. Government Publishing Office]
S. Hrg. 116-195
NOMINATION HEARING OF JAMES EDWIN
TRAINOR III FOR COMMISSIONER OF THE
FEDERAL ELECTION COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
MARCH 10, 2020
__________
Printed for the use of the Committee on Rules and Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
40-360 PDF WASHINGTON : 2020
COMMITTEE ON RULES AND ADMINISTRATION
SECOND SESSION
ROY BLUNT, Missouri, Chairman
MITCH McCONNELL, Kentucky AMY KLOBUCHAR, Minnesota
LAMAR ALEXANDER, Tennessee DIANNE FEINSTEIN, California
PAT ROBERTS, Kansas CHARLES E. SCHUMER, New York
RICHARD SHELBY, Alabama RICHARD J. DURBIN, Illinois
TED CRUZ, Texas TOM UDALL, New Mexico
SHELLEY MOORE CAPITO, West Virginia MARK R. WARNER, Virginia
ROGER WICKER, Mississippi PATRICK J. LEAHY, Vermont
DEB FISCHER, Nebraska ANGUS S. KING, JR., Maine
CINDY HYDE-SMITH, Mississippi CATHERINE CORTEZ MASTO, Nevada
Fitzhugh Elder IV, Staff Director
Lindsey Kerr, Democratic Staff Director
C O N T E N T S
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Pages
Opening Statement of:
Hon. Roy Blunt, Chairman, a U.S. Senator from the State of
Missouri....................................................... 1
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota... 2
James E. Trainor, III, nominee for Commissioner of the Federal
Election Commission............................................ 6
Prepared Statement of:
Hon. Ted Cruz, a U.S. Senator from the State of Texas............ 26
James E. Trainor, III, Nominee for Commissioner of the Federal
Election Commission............................................ 27
Materials Submitted for the Record:
Ms. Hunter's Op-Ed in Politico magazine article dated, October
22, 2019, submitted by Hon. Mitch McConnell.................... 29
Trainor letter submitted by Hon. Mitch McConnell................. 34
Trainor letter submitted by Hon. Amy Klobuchar................... 37
Questions Submitted for the Record:
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
James E. Trainor, III, Nominee for Commissioner of the Federal
Election Commission............................................ 39
NOMINATION HEARING OF JAMES EDWIN
TRAINOR III FOR COMMISSIONER OF THE
FEDERAL ELECTION COMMISSION
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TUESDAY, MARCH 10, 2020
United States Senate
Committee on Rules and Administration
Washington, DC.
The committee met, pursuant to notice, at 11:06 a.m., in
Room 301, Russell Senate Office building, Hon. Roy Blunt,
Chairman of the Committee, presiding.
Present: Senators Blunt, Klobuchar, McConnell, Wicker,
Fischer, Hyde-Smith, Schumer, Udall, and Cortez Masto.
OPENING STATEMENT OF HONORABLE ROY BLUNT, CHAIRMAN, A U.S.
SENATOR FROM THE STATE OF MISSOURI
Chairman Blunt. The Committee on Rules and Administration
will come to order. Good morning. I am glad that our colleagues
are beginning to assemble here. Glad to be here with my friend,
the Ranking Member of the Committee, Senator Klobuchar. We are
particularly glad, of course, to have Trey Trainor here. Trey
is joined by his wife, Lucy.
I would like to recognize the fact that their children, I
believe, are watching this hearing back home in Texas where
they are in school. Taking a break for a hearing is one thing,
taking a break for a couple of days of school, another thing
entirely. To James and Abigail, to Patrick and Mary Catherine,
Charles, and Andrew, we are glad to be here with your dad today
and glad you have a chance to watch this either while we are
doing it or later today.
Mr. Trainor is an election law attorney from Driftwood,
Texas. He has been practicing law for nearly 20 years. He has
represented candidates, political figures, local governments,
corporations, and other groups with respect to election law,
campaign finance law, and ethics. His clients have included the
Republican Party of Texas, the Texas Secretary of State, and
President Trump's campaign. He has also served on the U.S.
Election Assistance Commission's Standards Advisory Board. The
confirmation of Mr. Trainor would fill a vacancy, correct a
political imbalance, and, most importantly, create a quorum for
the Federal Election Commission.
The FEC plays a vital role for Federal campaign committees.
As a former Secretary of State, I certainly worked with the FEC
on a regular basis. Since I was Secretary of State, I have run
in nine Federal elections and always needed to know that the
FEC was there if we needed an answer to a question. I know how
important having the FEC as a fully functioning commission
would be for Federal candidates, how important it is that we
have for those candidates FEC guidance and advisory opinions.
It is always even more true in the election year itself. The
FEC has been without a quorum since late August of last year.
Since then, the FEC has not been able to hold hearings,
make new rules, issue advisory opinions, conduct
investigations, or approve enforcement actions. In fact, while
the Commission is authorized to have six Commissioners, it
currently has only three. The terms of the three remaining
Commissioners expired years ago--Commissioner Hunter's term
expired in 2013, Commissioner Walther's in 2009, Commissioner
Weintraub's in 2007. It should be noted that a full term is six
years, and Mr. Trainor has been nominated to serve on the FEC
now several times.
First nominated in 2018, then again in 2019--first
nominated in '17, then again in '18, '19, and '20. Since 2013,
the Senate has received no other nominations to the Federal
Election Commission. 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. I look
forward to hearing your testimony today, Mr. Trainor, and I
look forward to having a quorum at the FEC again. I'm pleased
now to turn to Senator Klobuchar for her opening remarks.
OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A U.S. SENATOR
FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you very much, Mr. Chairman. Today
we are here to consider a nominee to the Federal Election
Commission, the independent agency responsible for enforcing
our Federal campaign finance laws. I am deeply disappointed
that my Republican colleagues have departed from the Senate
tradition of considering FEC nominees on a bipartisan basis.
We look back and the Senate has voted to confirm 47 FEC
nominees, and according to the Congressional Research Service,
42 of those nominees have been confirmed through a bipartisan
process. The FEC has been, as we know, without a quorum for 192
days, the longest period without a quorum in the agency's
history, and I have repeatedly urged my Republican colleagues
to work with us to get the agency up and running again, but
abandoning bipartisan norms and pushing forward a controversial
nominee is not the way to do it.
Moving forward in this way does more harm than good and it
isn't what the American people sent us here to do. Americans
are tired of the hyper partisanship and gridlock, we should be
working to restore the trust in our political institutions.
Most Americans don't have the time to study the intricate
details of our campaign finance laws, but let me tell you, they
have a pretty good sense that things are broken. They know that
spending on campaigns has gotten out of control and that
spending by special interest groups is a major part of the
problem. Experts project that at least $6 billion will be spent
in the 2020 election cycle on advertisements alone. That
doesn't count the billions that would be spent by the campaigns
themselves and the additional billions spent by dark money
groups.
In order for our democracy to work, we need strong rules
for campaign spending and we need a strong agency to enforce
the rules. Congress created the FEC for that very purpose, but
it has been dysfunctional and plagued by partisan gridlock. I
urge that we pass legislation to change this, to work together,
to pass my bill to reform the FEC's rules so that it functions
better. I have legislation that we could have a hearing on if
we chose, that would establish a working group to investigate
bipartisan solutions to improve the functioning of the FEC.
Now, my Republican colleagues have said that by confirming
Mr. Trainor, they will do something good, which is restoring
quorum, but that is not the full story of this nomination. It
ignores the fact that gridlock will persist and that
Republicans have intentionally left a Democratic seat on the
Commission vacant for more than 1,100 days. It ignores the fact
that Leader Schumer and I have referred a Democratic candidate
to the White House for consideration and that she has been
vetted and cleared. She is mentally qualified and she would be
the first person of color to ever sit on the FEC. The idea is
that we would have paired these nominations together.
The Democratic seat will remain vacant and the agency
charged with enforcing our campaign finance laws will remain
ineffective. This is part of a pattern for this Administration
and it, of course, spans across many agencies. Now on the topic
of the nominee, Mr. Trainor. Today, we are asked to consider
appointing someone to the FEC who doesn't believe in the basic
campaign finance law. As former Republican FEC Chairman Trevor
Potter put it, ``Trainor's nomination is another example of how
the current nomination process produces Commissioners who are
opposed to the mission of the agency, resulting in an explosion
of secret spending in elections.'' That is a quote from a
fellow Republican.
Throughout your career Mr. Trainor you have consistently
worked to dismantle the rules that keep corruption out of our
political system. You have spent a career arguing that people
shouldn't have to disclose political spending and fighting to
defund the Texas Ethics Commission for enforcing campaign
finance rules. Your views on disclosure are inconsistent with
decades of Supreme Court precedent, including the views of the
late Justice Scalia.
When fellow Republicans in the Texas legislature work to
require politically active nonprofit organizations to disclose
their donors, you challenged them and said that such a law
would have a chilling effect on anybody's ability to speak. You
have worked to support voter ID laws. You have helped groups
work to purge voter rolls. You believe that the Supreme Court
got Citizens United right. You have worked to distort district
maps in Texas and you don't believe that states with a history
of discriminating against minority voters should have their
maps reviewed by the courts.
That is why Trevor Potter made that statement. It is just
not me making this statement. These are not consistent views
with where the American people are. A recent Gallup poll found
that 80 percent of Americans are dissatisfied with how we
handle campaign finance in this country. That is the highest
dissatisfaction rate since they started asking the question in
2001, and 77 percent of the public say that there should be
stronger limits on spending in campaigns.
When it comes to the agency in charge of enforcing our
campaign finance laws, the minimum, the absolute minimum
qualification should be that the person actually believes in
the mission of the agency. I look forward to hearing the
testimony today. Thank you.
Chairman Blunt. Senator Cruz had hoped to be here today and
introduce the nominee. I am going to insert his statement in
the record. He talks about his long association with the
nominee and his confidence that the nominee will be a great
addition to the Commission.
[The prepared statement of Senator Cruz was submitted for
the record.]
Chairman Blunt. Do you have a statement, Mr. Trainor? Why
don't you go ahead and we have your statement--your filed
statement----
Senator McConnell. Mr. Chairman----
Chairman Blunt. Do you want to ask questions before he
makes a statement?
Senator McConnell. What I would like to do is make a
statement and ask a couple of questions, and--is that okay?
Chairman Blunt. Any objection?
Senator Klobuchar. Nope.
Chairman Blunt. Without objection, we will let the Majority
Leader who is a member of this committee make his statement and
then we will let him go on to his questions. Mr. Trainor, I
think we have a number of things going on in other places this
morning.
Senator McConnell. I appreciate it, Mr. Chairman, Senator
Klobuchar. Mr. Trainor, appreciate your being here. It has
certainly been a long process for you. I am sure nobody is
happier than you and your family that we can finally move
forward with this nomination. I have a few questions for you in
just a moment, but I would like to address some broader issues
surrounding the Commission.
Mr. Trainor's nomination would fill one of two Republican
vacancies, re-establish parity between the two parties, restore
a quorum, and bring the FEC one step closer to a full slate of
six Commissioners. But it is somewhat remarkable to remember
that if confirmed, Mr. Trainor would be the only Commissioner
serving on an unexpired term--the only one.
Ms. Hunter, the only remaining Republican appointee, saw
her term expire in 2013. So did Mr. Walther, one of the
Democratic appointees. More than 6 years of hold over each. Of
course
Ms. Weintraub, the most recent Democratic Chairwoman has been
held over on an expired term since the year 2007. Think about
that. Her term expired during the Bush 43 Administration. 68 of
the 100 United States Senators began their Senate service after
Ms. Weintraub's term had already run out.
Between the three current Commissioners combined, we are
talking about nearly three decades of continued service since
the expiration of their terms. To any of the colleagues who
might suggest they feel the FEC is dysfunctional or who wish to
propose that its fundamental makeup, which has served us since
Watergate, should be altered, I would suggest that what we
actually need to do is have the Commission fully functioning as
it already exists, totally filled out, clean slate of
Commissioners all serving on real, unexpired terms to bring new
energy, build new relationships, and inject some new
perspective. Let's not leave this critically important body
undermanned and filled with exclusively people serving past the
end of their terms, and then pretend that the problem is the
underlying bipartisan architecture of the Commission itself.
Confirming Mr. Trainor will restore a quorum and restore an
even balance between the two parties' appointees. I am
optimistic we will be able to move forward with this nominee
and take one important step back toward where we ought to be.
But more broadly, I would hope that all of us on the Committee
on both sides would be able to agree that we should aim for a
new, clean slate of Commissioners on both sides. This is a
concept which the current chairwoman has herself suggested. Mr.
Chairman, I ask that Ms. Hunter's Op-Ed in Politico magazine
dated October 22, 2019 be entered in the record.
Chairman Blunt. Without objection.
[The information referred to was submitted for the record.]
Senator McConnell. It is also a concept that has been
supported by election law practitioners on both sides of the
aisle. I would ask that a letter dated January 6, 2020 signed
by 31 election law practitioners be entered into the record.
Chairman Blunt. Without objection.
[The information referred to was submitted for the record.]
Senator McConnell. Now, Mr. Chairman, with your indulgence,
I have got three questions and I would really appreciate the
opportunity to wrap this up. Mr. Trainor, what is the source of
campaign finance law?
Mr. Trainor. Thank you for your question. The source of
campaign finance regulation is--first and foremost the
touchstone for us is the First Amendment, and it is the fact
that the Supreme Court has allowed campaign finance regulation
as an exception to the First Amendment. We always go to that
original source, the First Amendment, and then we look to the
statute that Congress has passed and have been upheld by the
courts.
Senator McConnell. What do you view as the role of the FEC?
Mr. Trainor. I view the role of the FEC first and foremost
as one of giving the American people confidence in our
electoral system with the disclosure requirements that we
currently have. People visit the website on a daily basis to
see what type of money is being given to elected officials.
That is a critical role. It helps to deter corruption in our
Governmental system. That is the primary function that they
serve.
Senator McConnell. Some of our Democrat colleagues are
always saying that the FEC fails to enforce the law. Do you
think the FEC fails to enforce the law as some of our
colleagues on the other side have suggested?
Mr. Trainor. I do not. In fact, if you look at the FEC,
there are automatic fines that come from the FEC on a regular
basis because they have taken the administrative process and
automated it so that if people miss filing deadlines, they have
automatic fines that are applied to them. The agency is in fact
enforcing the law. Even now without a quorum, they are
enforcing the law.
Senator McConnell. Mr. Chairman, thank you for your
indulgence. This is a subject I have had an intense interest in
over the years. We all may remember McConnell v. FEC----
Mr. Trainor. Very much so.
Senator McConnell. I thank you very much for giving me an
opportunity to parachute in here and make some observations.
Thank you.
Chairman Blunt. Thank you, Leader, and thanks to my
colleagues for allowing that to happen. Mr. Trainor, why don't
we go ahead and have your opening statement and then we will go
to Senator Klobuchar for questions right after that.
OPENING STATEMENT OF JAMES E. TRAINOR III TO BE COMMISSIONER OF
THE FEDERAL ELECTION COMMISSION
Mr. Trainor. Thank you. Chairman Blunt, and Ranking Member
Klobuchar, and members of the committee, it is an honor to
appear before you as President Trump's nominee for the position
of Commissioner of the Federal Election Commission. Before I
begin, I would like to introduce my wife, Lucy. She is the
mother of our six children, as the chairman stated, James,
Abigail, Patrick, Mary Catherine, Charles, and Andrew. I am so
very pleased and proud to have her here with me today as I
could not have had any success in my career up to this point
without her unwavering support. I would also like to thank my
parents Jim and Teresa.
Unfortunately, my father cannot be here with us today and
my mother passed away in 2011, but I know that they are both
here in spirit with me. I would also like to thank my
grandmother Wanda who has always been one of my biggest fans
and I know she is watching right now. Finally, I would like to
thank my friends and family, both those that are here today
supporting me and those watching for their support and
encouragement as I have engaged in this process since my
original nomination in September 2017.
Lucy and I are from the unincorporated area of Hays County,
Texas, near a little town called Driftwood, population 144. We
are both proud graduates of Texas A&M University, where I was a
member of the Corps of Cadets, and I am a proud veteran of the
U.S. Army Reserves. It is a privilege for me, as someone who
isn't intimately ingrained in the Washington, DC legal
community, to be considered for this position and to testify
regarding my qualifications and interest in serving as an FEC
Commissioner.
As you know, the FEC's mission is to protect the integrity
of the Federal campaign finance process by providing
transparency and fairly enforcing and administering Federal
campaign finance laws. The origins of campaign finance
regulation in America date back to President Theodore
Roosevelt's Administration and evolved greatly from 1907 to the
present. In 1971, Congress created the current regulatory
environment by enacting the Federal Election Campaign Act and
instituting stringent disclosure requirements for Federal
candidates, political parties, and political action committees.
Congress amended the Federal Election Campaign Act in 1974 to
set limits on contributions by individuals, political parties,
and PACs, and establish the independent agency that we know as
the FEC, which has been operating since 1975.
Over the past 40 years, the FEC has served an important
function in our Republic by providing the American people
assurances against political corruption through the disclosure
process. Moreover, it has provided the regulated community,
those of you who are elected officials, candidates, and
political action committees, with guidance on how best to work
within the confines of the law. Having graduated from what is
today Texas A&M University School of Law, I have been
practicing law in this area for over 15 years. The vast
majority of that time has been spent advising political
candidates, PACs, and organizations on compliance with mostly
state and some Federal election laws.
I particularly pride myself on working closely with my
clients to avoid instances that would trigger administrative
actions. But I also take my ethical obligation to vigorously
defend my clients, should the need arise, very seriously. If
the Senate votes to confirm me to this post, I will approach my
work at the FEC in an objective and methodical manner.
I fully recognize that the touchstone for all regulation of
political speech is the First Amendment and that the U.S.
Supreme Court has held that our current campaign finance
regulation, particularly the disclosure regime, are an
allowable exception to the First Amendment for the purposes of
deterring corruption.
Accordingly, I will always look to the statutes as passed
by Congress and adjudicated by the courts as my guide in
reviewing the matters that come before the FEC to ensure that
all parties are treated fairly and impartially. Mr. Chairman,
Ranking Member Klobuchar, and members of the committee, thank
you for the opportunity to appear before you today and I
welcome any questions that you may have.
[The prepared Statement of Mr. Trainor was submitted for
the record.]
Chairman Blunt. Thank you, Mr. Trainor. Senator Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Trainor.
I have a daughter named Abigail too, so there you are, but I
don't have six kids. First of all, we are going to be having a
briefing this afternoon actually on foreign interference in our
election by the intelligence heads and what is happening, and
efforts made to prevent it from happening again. Do you accept
reports that Russia interfered in our elections and that our
elections remain a target for Russia or other adversaries?
Mr. Trainor. Yes, I believe that there has been foreign
interference in our elections and I believe that there is still
the potential for our elections to be targeted by foreign
entities.
Senator Klobuchar. Okay. During the 2016 election cycle,
Russians took advantage of a weak online disclaimer and
disclosure rules and bought--actually bought political ads,
some of them in Rubles, some through other groups, and the
belief is that according to Facebook, responses to
investigations by the Senate Intelligence and Judiciary
committee's, Russian disinformation reached more than 126
million Americans online.
It is one of the reasons Senator McCain and I introduced
the Honest Act and now Senator Graham is doing the bill with
me. It would basically apply the same disclosure and disclaimer
rules that apply to political ads run on TV, radio, and in
print to ads run online. Do you support legislation like this?
Do you think it is something that would be a good idea for the
FEC to do? This would be requiring disclosure and disclaimer
rules to apply to online political ads, including issue ads.
Mr. Trainor. There is a lot to your question there. I will
say that the statute has prohibited foreign interference in our
elections from its inception. There has been bipartisan support
for enforcement of that and I will continue to enforce--to
prohibit foreign interference in our elections.
With regard to the disclaimer issues in online ads, I know
that that is the subject of a rulemaking at the Commission. I
don't want to sit here today and prejudge something that I may
have to opine on as far as the rulemaking is concerned. But in
that sense, the disclosure requirements, I think that the
comments from all of the regulated community are very helpful,
and I think that there is a place for consensus among the
members of the Federal Election Commission to get to a
disclosure requirement for online ads.
Senator Klobuchar. Okay. I would emphasize the importance
of the issue ads as well. Many of these ads that really played
both sides and like the energy area, pro-pipeline, anti-
pipeline, pro-gun and anti-gun, they were done on both sides to
basically influence our political process, and I hope that this
won't just be campaign ads. On Bluman v. FEC, the Supreme Court
affirmed the decision that upheld the ban on campaign
contributions and expenditures by foreign nationals.
However, the lower court opinion left open the possibility
of unlimited spending by foreign nationals in the United States
on issue advocacy, the same kind of activity, as I just
mentioned, that we saw by the Russians in 2016. In fact, a
Russian company facing charges brought by Special Counsel
Mueller cited Bluman in arguing to have the charges thrown out.
I repeat, a Russian company used this opinion to try to make
the case that they shouldn't be prosecuted.
As a Commissioner on the FEC, you will be responsible for
enforcing the laws that ban foreign spending in elections, as
you just mentioned. You have argued, however, that individuals
should not have to disclose their donations to issue groups. My
first question is, should foreign nationals be able to donate
unlimited sums to issue advocacy organizations?
Mr. Trainor. With regard to issue ads, it doesn't fall
within the purview of the Federal Election Campaign Act
according to the courts. It is very difficult to say that the
Commission should in fact exercise jurisdiction in that area.
But I will say with regard to the foreign disclosures, as I
said before, I will absolutely enforce the statute as written
to prohibit foreign involvement in our elections.
Senator Klobuchar. Would this mean that issue advocacy
organizations would be required to disclose their donors? Are
you for that?
Mr. Trainor. Well, there are two court cases that are
pending with regard to issue advocacy organizations. I know
that currently based upon the District Court ruling, and it is
being appealed, but based upon the District Court ruling, the
FEC is enforcing the disclosure of donors.
Senator Klobuchar. But do you agree with it?
Mr. Trainor. Again, I don't want to take any position on
where the Commission may come down in the appeal, not having
talked with my colleagues who would be there on what their
opinion is to where they stand in the appeal, and not having
talked with counsel for the agency.
Senator Klobuchar. I will do more questions on a second
round. Thank you.
Chairman Blunt. Alright. Senator Hyde-Smith.
Senator Hyde-Smith. Thank you, Mr. Chairman. Mr. Trainor,
thank you for being here today. It is very vital that the
Senate act quickly to get your nomination confirmed because we
must restore quorum at the FEC so the agency can get back to
doing what it does.
Just a couple of things here, due to your previous roles in
the Administration and in the Republican Party, some
individuals believe that you must recuse yourself from all
matters involving President Trump. How will your personal views
affect decisions that you make or might make on questions that
come before you as a FEC Commissioner?
Mr. Trainor. Thank you for your question Senator. My views
with regard to President Trump--I will approach everyone who
comes before the Commission objectively. I will look at the
facts that are presented to me. I will look at the law, and I
will apply the facts to the law fairly amongst everyone that
comes before the Commission. With regards to the issue of
recusal, I have already had conversations with the ethics
advisors at the Commission.
I have entered into an agreement with regard to recusals at
the Commission and I intend to follow the same recusal regime
that every other Commissioner has followed when matters
regarding President Trump come up. I will approach the ethics
officials at the agency and have that discussion with them to
see when it is appropriate to recuse and when not.
Senator Hyde-Smith. Do you believe other Commissioners
should be held to that same standard including any previous
involvement or comments that they have made about the
President?
Mr. Trainor. I do believe that it is very important for all
of the Commissioners to follow the same regime and for us all
to be held to the same standard with regard to recusal. Again,
I think it is one where a close discussion with the ethics
advisory is important so that we can have appropriate recusals
when comments may bias an individual's decisions.
Senator Hyde-Smith. You have expressed the importance of
bringing better transparency to the FEC, especially so
candidates and members of the public can have better
understanding and access to the information collected by the
agency. Please share with the committee your vision for making
the FEC a more transparent and accessible organization.
Mr. Trainor. I will. As a practitioner in this area, I
often visit the FEC's website to review campaign finance
reports, to look at the various advisory opinions that are put
out. The website is very cumbersome and very, very hard to
search, and I think that that makes it very hard for the public
to understand exactly what the state of our campaign finance
regulation is. I would start with looking at making things more
accessible just from the front line area where people go first
and foremost to get information about campaign finance.
Senator Hyde-Smith. Alright. Great. Thank you very much.
Thank you, Mr. Chairman.
Chairman Blunt. I have the--the Democrat Leader has joined
us, who is also on this committee. Senator Schumer, Senator
McConnell took time for a statement and then some questions and
we would be glad for you to do the same thing.
Senator Schumer. Thank you very much, Chair Blunt. I want
to thank you and our great Ranking Member Amy Klobuchar and all
the members of this committee. It has been too long since I
joined you in this committee in a public setting, but
unfortunately the nominee before us today provided, at least
from my point of view, an unhappy occasion for a reunion.
Now, we are here today to consider the nomination of Trey
Trainor of Texas to serve on the FEC. It is an important
nomination considering the national election we will have in
November. Even more so because for the last 6 months, the
Commission has been unable to fulfill its mission because it
has lacked a quorum. Now, I agree with my colleagues that we
need to work toward ending this freeze, but I reject the notion
that we must rush to confirm just anybody to the post. The
record of the nominee we have before us, Mr. Trainor, raises
significant questions about his fitness to carry out the
Commission's anti-corruption mandate.
Mr. Trainor has a long career as a conservative political
operative. He has worked closely with Thomas Hofeller,
notorious for masterminding Republican gerrymandering schemes,
to redraw maps that significantly disenfranchise minority
voters at the local level. Mr. Trainor's former law firm
described him as being, ``intimately involved'' in Texas' 2003
redistricting which the Supreme Court deemed in violation of
the Voting Rights Act. Mr. Trainor has argued the Voting Rights
Act has become a political tool. The sacredness of this Voting
Rights Act, making it easier for people to vote, he calls it a
political tool, and asserted that Section 5, which requires
certain states and localities to gain Federal approval for
voting change to ensure it is not discriminatory, has outlived
its usefulness.
To have a check on states that might want to take advantage
of minorities and poor people, and to say that has outlived its
usefulness when we have seen, ever since the Shelby decision,
state legislature after state legislature try to take those
rights away, some of them rather boldly, amazing to me. Mr.
Trainor's views on public disclosure of campaign finance--of
campaign donations are also discouraging. In his opening
statement, Mr. Trainor acknowledged the Supreme Court for
allowing--allowed for campaign finance regulations to deter
corruption.
Unfortunately, however, this late-breaking acknowledgement
cuts against statements Trainor has made in the past. In 2017,
Mr. Trainor speculated, ``The reason the Federalist Papers were
published anonymously is because they wanted the effectiveness
of their ideas to win, not who was saying it, to win the
arguments, and ultimately, that is what Citizens United has
decided,'' he said, and why it is such a terrible idea to have
Citizens United rolled back. I would like the American people
to know that the Republicans have nominated someone who wants
to roll back Citizens United, which the overwhelming majority
of American people support, public disclosure of who is giving.
It is amazing. We live in a democracy. We live in a democracy.
In other words, as the Washington Post reported, these
words from Mr. Trainor, ``appeared to erroneously suggest that
the Supreme Court's 2010 Citizens United decision endorsed
anonymous political contributions,'' which anyone who reads the
case once knows it hasn't. To be clear, the Supreme Court and
Citizens United said the exact opposite of what Mr. Trainor
suggested, that disclosure was not only appropriate but
important for the public to make informed decisions.
But unfortunately, the Republican Party Leader McConnell,
has done a 180 degree shift on that. He was for disclosure a
while ago when he was against campaign finance reform but now
he is against it and nominating somebody who is against it.
Here in this case, Mr. Trainor has expressed two diametrically
opposed views on a crucial issue before the FEC. Are reasonable
restrictions on the anonymity of donations appropriate or not
at all?
I expect my colleagues on the committee have been putting
these questions to the nominee, but from my perspective,
looking at
Mr. Trainor's views on other cases concerning voting rights and
campaign finance, it seems far more likely that his earlier
opinions are more instructive than his statement given only a
short time ago before the committee in charge of confirming
him. Unfortunately, Mr. Trainor appears to fit with a pattern
in the Trump Administration.
The Administration has a habit of nominating persons to
staff or lead Federal agencies despite holding views that are
very opposite of the mission of the agency: oil and gas lobby
and some climate skeptics for EPA, chemical industry lobbyists
for the Consumer Product Safety Commission, the acting head of
the CFPB believes the agency she now runs shouldn't even exist.
Here we have a nominee for the FEC whose work has violated the
Voting Rights Act and who believed, at least at one point,
significant skepticism of even the most reasonable restrictions
on campaign finance.
Mr. Trainor will receive a fair hearing before this
committee as every nominee should and will likely receive a
vote before the Senate in the future. Before these votes are
cast, it is imperative that every member of this body fully
considers Mr. Trainor's record and weigh what a vote for or
against his nomination would mean for efforts to limit the
influence of big, dark money in politics and root out
corruption at all levels of our political process.
Thank you, Mr. Chair. I don't have any questions, so I
thank you.
Chairman Blunt. Well, thank you, Senator Schumer.
Mr. Trainor, Senator Schumer suggested we were rushing to
confirm just anybody to the post.
I would remind my colleagues that we haven't had a nominee,
except for you, since 2013 with vacancies and expired terms on
the Commission during that entire time. But you're an attorney
in private practice as pointed out. You have represented
clients in the election area. Why are you interested in
becoming an FEC Commissioner and how do you think your past
experience qualifies you for this job?
Mr. Trainor. Thank you for your question, Mr. Chairman. My
past experience for the 16 years that I have worked in this
area of the law I think has prepared me well for this position.
I come to this position with a hope of being able to help to
achieve the mission of the agency, and that is to give the
American people confidence in the electoral process through the
disclosure process that takes place with the money that is
given to elected officials and that is spent by political
action committees to support those candidates.
Chairman Blunt. Both Senator Klobuchar and Senator Schumer
have mentioned your work on redistricting maps. One, have you
drawn any of those maps, or two, have you principally defended
maps? And then, have the courts struck down any of the maps
that you have worked to defend?
Mr. Trainor. The answer to your first question with regard
to the courts having struck down any of the maps, the answer to
that question is no. I have worked on three redistricting cases
as legal counsel. I had a client that I represented their
interest in, and I hope that we would not impute to the lawyer
the acts of the client. But in all three cases, however, the
courts have upheld the maps that I worked on.
I did work with Dr. Hofeller, God rest his soul. He is a
well-recognized expert in the field, and as a litigation
attorney, one of the first things that you do when you are
looking for an expert witness is to ask whether or not someone
has been certified as an expert witness in Federal court
before. Dr. Hofeller for over 30 years had been certified as an
expert witness in Federal court and therefore made an ideal
witness for my client.
Chairman Blunt. Does the FEC have any authority over
redistricting?
Mr. Trainor. None whatsoever.
Chairman Blunt. Let's talk about something it does have
authority over, which would be providing advisory opinions and
guidance to assist candidates and other campaign committees
without that guidance, especially first time candidates would
be required to hire accountants and lawyers that they wouldn't
need if they had guidance in many cases. If confirmed, what
would you do to ensure that the FEC is offering candidates and
other political committees consistent, accurate, and timely
guidance?
Mr. Trainor. I think that the advisory role that the
Federal Election Commission plays is one of the most critical.
It is how average Americans can participate in the process. If
you, today, decide to run for Congress, you absolutely have to
pick up the phone and call a lawyer because of the complex web
of campaign finance regulations that we have.
It should be a situation where you can pick up the phone
and call the Federal Election Commission and ask questions and
not live in fear of running afoul of the law. I would make it a
priority for me to expeditiously answer the questions that come
to the Commission under the advisory process.
Chairman Blunt. Do you have any ideas for expanding or
improving the kind of guidance the FEC can give?
Mr. Trainor. Well, I think the role that they play in going
around the country and hosting classes where candidates and
political action committees who want to get started to
participate, I think, is a critical role that they play. I
think the more they can get outside of Washington, DC and get
to talk to average Americans who are interested in this area of
the law and interested in participating in the political
process would be a great first step.
Chairman Blunt. If you are confirmed, you would become the
fourth vote the agency needs to take the various actions that a
quorum requires. How will you ensure that you are able to
quickly come up to speed on the issues pending before the
agency?
Mr. Trainor. Well, obviously I have read that they have an
extensive docket so it would be much like the first year of law
school. You start cramming on every case that you have, that
you need to know about. I see myself sitting down with the
other three Commissioners who are there, getting to know my
colleagues, and figuring out ways that we can come to consensus
on as many cases as we possibly can, as quickly as we possibly
can.
Chairman Blunt. Thank you. Senator Cortez Masto.
Senator Cortez Masto. Thank you. Hello, Mr. Trainor. Let me
followup on Senator Blunt's questioning. I think he asked you,
how many times have you been involved in redistricting efforts
and how many times those efforts have run afoul of the law,
violated the law, and you said none. Is that correct?
Mr. Trainor. That is correct. I have worked on three
different redistricting cases----
Senator Cortez Masto. Were they all in Texas?
Mr. Trainor. Yes, ma'am.
Senator Cortez Masto. Okay, so can I ask you, so for
purposes of, and maybe I need just, and that is why I am
asking, clarification, in 2006, the Supreme Court held in
League of United Latin American Citizens v. Perry that the
Texas legislature violated the Voting Rights Act in redrawing a
particular District in Southwestern Texas when it adopted the
plan in 2003.
Mr. Trainor. Yes.
Senator Cortez Masto. My understanding is that you were
involved in that plan in 2003. You coordinated the maps and
legal aspects of passage and Department of Justice pre-
clearance of HB3. Is that correct?
Mr. Trainor. No. In 2003, I was a staffer for
Representative Phil King in the Texas legislature.
Representative King was the primary author of that particular
piece of legislation----
Senator Cortez Masto. You did not work on that or make
recommendations to legislator King on that legislation?
Mr. Trainor. At the time, I was not licensed as a lawyer
until November of that year and the legislature had already
passed the legislation at that time.
Senator Cortez Masto. Still, as a staffer you didn't--you
were not involved in making recommendations to the legislator
on that on that redistricting or that new law?
Mr. Trainor. No. I mean, obviously, I worked closely with
him to help bring in individuals that he needed advice from to
work on the effort. I helped to coordinate those type of
meetings for him just like your staff, I am sure----
Senator Cortez Masto. You became an attorney in November of
that year?
Mr. Trainor. November 2003.
Senator Cortez Masto. You passed the bar?
Mr. Trainor. Yes.
Senator Cortez Masto. Officially--so prior to that year,
waiting to hear----
Mr. Trainor. Yes. I had taken----
Senator Cortez Masto.--while you were working for the
legislator, correct?
Mr. Trainor. I had taken the bar, yes.
Senator Cortez Masto. Okay, so but it is true that the
court found in that case that the legislature had illegally
carved up Laredo, removing 100,000 Mexican Americans and adding
a white population to shore up a Republican incumbent?
Mr. Trainor. That is correct. I believe that to be one of
the findings in the case.
Senator Cortez Masto. Did you agree with that court
decision?
Mr. Trainor. The findings in the case and the remand all
get jumbled, and since I wasn't an attorney on them, I don't
really----
Senator Cortez Masto. As an attorney now, do you agree with
that decision?
Mr. Trainor. I do now. LULAC v. Perry is still very good
law.
Senator Cortez Masto. You agree with it?
Mr. Trainor. Yes.
Senator Cortez Masto. In Texas, you advocated for defunding
the Texas Ethics Commission, which is the state's equivalent of
the FEC, so that it would cease existing. In 2014, you said
efforts by the Commission to promote transparency for big
political donors were completely unconstitutional. Why should
someone who wants to disband his own state's campaign finance
enforcement agency serve on the enforcement agency for the
whole country? Can you clarify those statements for me please?
Mr. Trainor. Absolutely. I would be happy to. The Texas
Ethics Commission as it is currently constituted is constituted
in a similar manner that the original Federal Election
Commission was constituted. That is, that members of the Texas
Ethics Commission, while they are appointed by the Governor,
they are actually selected by members of the House and the
Senate. It exists in the legislative branch of the Texas
Constitution.
However, they have overtime been given statutory authority
to exercise police powers. There is a separation of powers
issue with regard to the Texas Ethics Commission enforcing laws
as a legislative body. It is very much in line with the U.S.
Supreme Court's decision in NRA Victory Fund v. FEC where the
membership of the FEC was altered to eliminate appointments
from the Congress to the FEC.
Senator Cortez Masto. It is the police powers that you said
are unconstitutional, but you do not believe that in Texas, the
Texas Ethics Commission should cease to exist?
Mr. Trainor. The fallback position in Texas under Texas
law, the fallback position would be that the disclosure regime
would return to its original place that being the Secretary of
State's office.
Senator Cortez Masto. You agree it should cease to exist? I
guess that is what I am trying to clarify. Do you think it
should not exist?
Mr. Trainor. With regard to the functions that it is
exercising today, it should. It can continue to function for
its constitutional purpose. When the people of Texas originally
created the Ethics Commission, it was to evaluate and recommend
salary increases for members of the legislature. It can
continue to exist for that purpose.
For the purpose of exercising police powers and fining
individuals, which falls exclusively under the Texas
Constitution to the Executive branch, it would need to cease
those activities.
Senator Cortez Masto. The mission of the FEC is to protect
the integrity of the Federal campaign finance process by
providing transparency and fairly enforcing and administering
Federal campaign finance laws. I assume you are here today
because you believe in the mission of the FEC. Is that correct?
Mr. Trainor. Absolutely.
Senator Cortez Masto. Do you think that campaign finance
laws are being adequately enforced right now?
Mr. Trainor. I believe that the processes are in place to
adequately enforce them. I think without a quorum, obviously,
you can't do that. I think that the situation that we find
ourselves in, where there is not new energy and new life being
brought to the agency as Congress originally intended for it
to, has slowed down that process.
Senator Cortez Masto. Thank you. I know my time is up.
Thank you very much.
Chairman Blunt. Thank you, Senator. The question I asked,
just to be sure that Mr. Trainor was responding to what I
asked, was the question I intended to ask was if the court
struck down any of the maps that you have worked to defend, and
I meant worked to defend as an attorney. I think that was the
way you heard the question.
Mr. Trainor. That is what I heard, yes.
Chairman Blunt. Senator Udall.
Senator Udall. Thank you, Chairman Blunt, and let me just
tell your Ranking Member Senator Klobuchar, we really missed
her at the press conference for the For the People Act in the
Capitol, but your name was mentioned and what a good aggressive
stance you have taken on For the People and comprehensive
democracy reform. Everybody understood I think.
Mr. Trainor, your solo nomination hearing today is causing
a lot of us serious concern. Of the 47 Commissioners confirmed
before this committee, 32 of them were nominated and confirmed
in bipartisan pairs. At 68 percent of previous FEC
Commissioners that were brought before this committee,
nominated and confirmed on the same timeline. Of the remaining
15 confirmed Commissioners, 10 were nominated and confirmed in
bipartisan pairs within 1 month of each other--in bipartisan
pairs, in 1 month of each other.
Doing the math, nearly 90 percent of all FEC Commissioners
were confirmed in bipartisan pairs. I am deeply disappointed
that the President and my Republican colleagues are moving this
nomination forward. When Senator Schumer proposed a Democratic
nominee to the White House last summer, the Democratic seat has
been purposely kept vacant for 1,100 days. That is 3 years and
counting.
This Republican seat has been vacant for 390 days. That may
be too long but the Democratic seat has been open two years
longer than the seat the Republicans are now filling.
Preserving the integrity of our elections is bipartisan
business. Bringing this nomination before the Rules Committee
while continuing to scuttle a Democratic nominee not only
breaks with the tradition of this committee, but also
reinforces President Trump's agenda to use the FEC as an
instrument of the Republican Party instead of as an agency to
impartially enforce the Nation's campaign finance laws.
Mr. Trainor, I think your nomination is going to face
obstacles unless we are making the FEC fully operational with a
full complement of Commissioners from both sides of the aisle.
Do you support pairing your nomination with one to fill the
other Democratic seat that has been vacant for 1,100 days?
Mr. Trainor. I think I would point back to the Majority
Leader's statement earlier that the Commission is in need of
new ideas and new perspectives across the board.
Senator Udall. You don't think it is an issue of
fundamental fairness, the process I have talked about of having
a full committee and have us move forward with a Democrat
paired with you. You don't buy that?
Mr. Trainor. With regard to the process of it, I have
been--as you mentioned, I have been pending before the Senate
since 2017 and my life has been on hold since then. I left my
law firm thinking that I was going to have a confirmation
hearing some time last year in this process. With regard to the
processes that the Senate engages in, I don't really know how
to comment on----
Senator Udall. Well, the other person has been delayed
another two years beyond you, so you can imagine what they are
going through. Now, I disagreed profoundly with Citizens United
and the Supreme Court's other campaign finance decisions.
However, we have to acknowledge that the court is not the only
institution at fault.
The gridlocked FEC, specifically a block of GOP
Commissioners who nearly always vote in lockstep, has also
played a big role in undermining our campaign finance laws. It
wasn't the Supreme Court that gave the green light for secret
money. Citizens United does the opposite. The case endorses
transparency as a solution to the problem of mega campaign
expenditures, but for the last decade GOP Commissioners have
blocked every attempt to close loopholes in FEC regulations
that allow secret money groups to flourish. They have refused
to compel special interest groups that spend virtually all
their money on political advocacy to register as PACs, which
would require them to disclose their donors.
It wasn't the Supreme Court that has allowed candidates to
work hand-in-glove with super PACs and even raised money for
them. The Supreme--the Court assumed these groups would be
independent. Again, this was the FEC. We have the institution
to thank for the spectacle of President Trump circulating at a
super PAC fundraiser at his own hotel being plied for favors by
million dollar donors.
In the decade since Citizens United was decided, the FEC
has made virtually no attempt to enforce even the inadequate
coordination rules it does have on the books. Instead, the FEC
is deadlocked over new transparency rules and failed to enforce
the transparency rules that already exist. Pattern is the same,
Democrats support transparency, Republicans oppose.
The FEC currently has a backlog of around 300 unresolved
cases, some of which deal with secret money groups and the $965
million of dark money that has been spent in Federal campaigns
since the Citizens United decision.
Now, Mr. Trainor, do you believe in developing new rules to
more fully disclose campaign donations and expenditures and
aggressively enforcing campaign finance laws, or do you believe
the ultra-wealthy have the right to keep multi-million dollar
donations to political interest groups secret from the public
when they try to influence our Government?
Mr. Trainor. Thank you for your question. Let me tell you
what I believe with regard to the organization's, first of all
with regard to Citizens United. The Supreme Court said that the
disclosure regime was one that was very valid.
What we know from litigation that is currently pending is
that organizations that spend money now have to disclose their
donors and the FEC has taken the position that they will
enforce that even though that case is on appeal.
As it is currently, there is a disclosure regime in place
for donors to nonprofit organizations that may engage in
independent expenditures and I fully intend to comport with the
Court's ruling while that is still going forward.
Chairman Blunt. Thank you, Senator Udall. Senator
Klobuchar.
Senator Klobuchar. Chairman, just this morning we received
a letter signed by 14 democracy groups, including several by
bipartisan and nonpartisan groups who oppose this nomination to
the FEC. Without objection, I would like to enter the letter
into the record.
Chairman Blunt. Without objection.
[The information referred to was submitted for the record.]
Senator Klobuchar. Thank you very much. For years the FEC
has frequently deadlocked in votes about whether the agency's
staff should investigate potential violations. Many believe
that these deadlocks have significantly impaired the agency's
ability to investigate potential criminal activity and enforce
the law. What do you think needs to be present for the FEC to
conclude that a ``reason to believe'' exists to open an
investigation, Mr. Trainor?
Mr. Trainor. I believe that there has to be credible and
valid evidence presented to the Commission that falls squarely
within the statutory requirements to show that the statute
itself has been violated.
Senator Klobuchar. Describe--do you have a situation you
could describe from the last four years in which you believe
someone got away with breaking Federal campaign finance law and
what the appropriate punishment should be?
Mr. Trainor. I think probably the most high-profile case of
someone breaking Federal campaign finance law was the Right to
Rise super PAC where there was foreign money involved and the
FEC slapped them down in that situation.
Senator Klobuchar. But you will agree that there have been
cases where people have broken the law where there hasn't been
any action?
Mr. Trainor. I don't have a full understanding of
everything that has gone on at the FEC being from Texas and
only practicing infrequently in front of the Commission, so I
don't know that I can characterize everything that has gone on
there.
Senator Klobuchar. In the 2010 Supreme Court case Doe v.
Reed, Justice Scalia wrote that, ``requiring people to stand up
in public for their political acts fosters civic courage
without which democracy is doomed.''
In a 2015 interview with Time Magazine, President Donald
Trump called for more transparency of donors behind big money
groups stating, ``I don't mind the money coming in, let it be
transparent, let them talk, but let there be total
transparency.'' Do you think that is correct?
Mr. Trainor. Well, Justice Scalia first espoused that
opinion in McIntyre v. Ohio, a school board case out of Ohio,
and at the end of the day the two cases CREW v. FEC that are
pending here in DC allow for that type of transparency. The
Commission is currently enforcing transparency of those
organizations. If I am to get to the Commission, I will follow
the dictates of the Court.
Senator Klobuchar. Okay, but here is my issue. There was a
famous 1958 Supreme Court case that protected the membership
list of the Alabama NAACP because NAACP members in the 1950's
faced persecution, violence, and death for their political
activity. You have repeatedly invoked the NAACP case to argue
that wealthy political donors should be able to stay secret.
How do these wealthy donors compare to the Civil Rights
activists who faced mortal danger?
Mr. Trainor. I think you have to take an overall view of
the--as I said in my opening statement, that the First
Amendment is our touchstone when looking at campaign finance.
We are only allowed to regulate what the courts have said we
can regulate with regard to the First Amendment.
With the NAACP v. Alabama being out there, it does in fact
say that individuals can donate anonymously to that
organization because they have a fear of reprisal.
That is still good law. In a situation where an individual
may have a fear of reprisal, I think that NAACP v. Alabama
clearly applies. I think that the state of the law is in flux
with regard to the Crew cases that are pending here, and if
they ultimately make it to the Supreme Court, they may have to
revisit the holding in NAACP v. Alabama.
Senator Klobuchar. I understand you submitted a letter to
the Commission's General Counsel regarding steps you will take
to recuse yourself from matters where there is a conflict of
interest. You served as counsel for President Trump's 2016
campaign and worked at the Department of Defense during the
first few months of the Trump Administration. Your letter does
not indicate that you intend to recuse yourself from matters
related to the Trump campaign. Do you plan to recuse yourself
from such matters?
Mr. Trainor. My plan is to follow the same recusal regime
as every other member of the Commission. In every situation
where a matter involving President Trump comes up, I can commit
that I will have a conversation with the ethics advisors at the
Commission to take the appropriate steps should recusal be
necessary.
Senator Klobuchar. You are not going to just recuse
yourself from the beginning on the Trump matters?
Mr. Trainor. Not as a blanket recusal. I don't think that
there is any one at the Commission currently who has a blanket
recusal and I think we should all follow the same rules and
guidelines.
Senator Klobuchar. Last question. In 2006, the Supreme
Court held in League of United Latin American Citizens v. Perry
that the Texas legislature violated the Voting Rights Act
because the plan was drawn to deny Latino voters in District 23
the opportunity to elect a candidate of their own choosing. You
have done significant redistricting work in Texas during your
career. Did you do any work on the 2003 map and did the Supreme
Court get it right in this case?
Mr. Trainor. The work, as I was explaining earlier, the
work I did in 2003 was as a non-lawyer staffer for a member of
the Texas legislature who carried that particular piece of
legislation. The answer to your question is, I did do work on
it in that I administratively processed, that type of thing----
Senator Klobuchar. I heard that. How about the Supreme
Court's ruling?
Mr. Trainor. I do believe that LULAC v. Perry is good law.
Yes.
Senator Klobuchar. Okay. Thank you.
Chairman Blunt. Mr. Trainor, you mentioned that the
standards that must be met by the Commission to open
investigations be credible evidence. Let's go beyond that. What
would your process be for enforcing--for approaching
enforcement actions at the agency? Would you vote to enforce
campaign finance laws?
Mr. Trainor. If the credible evidence shows that there is a
violation, I absolutely will enforce the statute. More
importantly than that, I want to work with the other
Commissioners to come to a consensus when there is a violation
of the statute, instead of having a deadlock situation, find
areas where we can come together in a bipartisan manner when
someone has clearly violated the law.
Chairman Blunt. Well on that point, you know, there have
been real concerns that the FEC has been hopelessly deadlocked
over and over again. The balance of numbers, of members,
Republican and Democrat, has been an important part of the way
this institution was set up. But if you were confirmed, what
would you do to try to alleviate that deadlock and work with
your fellow Commissioners?
Mr. Trainor. Well, the deadlock that we currently see at
the Commission, I believe to be a function of the over extended
stays of Commissioners at the agency. I think Congress, in its
wisdom, putting in place a 6-year term is very important to
allow people to come in with fresh ideas and new ways of
evaluating the law.
As you see the law evolve in this area, you need people who
come from the world of practitioners into the Commission who
recognize what kind of effect it has on the regulated community
to have a deadlock situation, what type of burden it puts on
the private individuals to have to go litigate when there is a
deadlock situation.
My friend Dave Warrington reminded me last night the judge
that he clerked for had a sign on the other side of his bench
that said, remember you used to be a lawyer in this court to
remind him that he needed to treat everyone fairly and move
judiciously through his cases.
When I get to the Commission, I want to do that. I want to
remember that I used to be on the other side of that dais
representing individuals and that deadlock situations are not
helpful to the regulated community.
Chairman Blunt. On the topic of who has been waiting to
serve on the Commission, I might point out again, this is the
only nominee that we have had from the White House since 2013.
Your first nomination was in 2017. Then again '18, '19, and
'20.
In terms of time on task of trying to get to the
Commission, we certainly appreciate that. Again, other
Presidents have been slow in filling vacancies. There have been
two vacancies, I think, since 2013 that have not been filled by
anybody. Senator Cortez Masto, do you have another question?
Senator Cortez Masto. Thank you. I appreciate those
comments, Senator, but can I just followup on some answers that
you gave to Senator Klobuchar, and it goes back to the question
that I had originally asked you with respect to the 2003 maps
in Texas. You said you worked as a non-staffer for the
legislature on those maps--excuse me, a non-attorney staffer.
What was your title as a staffer?
Mr. Trainor. I was Chief of Staff.
Senator Cortez Masto. You were Chief of Staff to the
Representative working on those. Okay. What was your specific
involvement with respect to those maps for redistricting in
2003?
Mr. Trainor. I would do--so staff at the Texas legislature
is very, very small.
Senator Cortez Masto. You are the Chief of Staff----
Mr. Trainor. I am the Chief of Staff of two people.
Senator Cortez Masto. Okay.
Mr. Trainor. We did everything from coordinating what rooms
the committee would meet in to making sure that the Legislative
Counsel's Office----
Senator Cortez Masto. Did you help design the legislative
districts adopted for the 2002 elections?
Mr. Trainor. No.
Senator Cortez Masto. You did not. I guess I am confused
then because in your resume, which is online for Beirne,
Maynard & Parsons, at the end of it, it says that ``Trainor has
been intimately involved in Texas redistricting, helping to
design the Texas House Legislative districts adopted for the
2002 election. During the third called special session of 2003,
he coordinated the maps and legal aspects of passage and
Department of Justice pre-clearance of HB3, the new
congressional maps adopted for the 2004 election.'' Is that
statement as part of your resume, which is online for the firm
that you worked for, inaccurate?
Mr. Trainor. I think it is probably some marketing license
by the marketing individuals at the firm.
Senator Cortez Masto. That is your resume. It is not
something that you have pre-clearance and said, yes, I approve
this, this should be on representing what I have done in the
past with respect to my work on redistricting?
Mr. Trainor. With regard to HB3. I mean, I did do
coordinating efforts for the individuals who worked on the map.
I spent time working with them, making sure that they had
everything that they needed. In a redistricting situation, in a
state legislative body with 150 members of the House, they are
constantly bringing everyone in for meetings to talk about each
individual district.
I did spend time coordinating that. I did travel with
Representative King to the Department of Justice for the pre-
clearance meeting when he came here. They had asked for
additional information, and so he and the Senate sponsor came
to meet with the Department of Justice, and I, you know, sat
through that meeting.
Senator Cortez Masto. I appreciate your testimony here
today. I do think it is doing a disservice to the truth here,
and I have concerns that first of all, you are Chief of Staff.
We all have a Chief of Staff. We know what our Chief of Staff
does, and for you to come back and say that what was on your
resume is inaccurate and that you were not intimately involved
has concerns for me as somebody that I am looking to appoint to
the FEC, to an important, I think, body which, by the way,
should have been paired with a Democrat.
I appreciate the comments from the Chairman, but I do think
if we are going to make a statement as Congress, that we have
to fight for one another when appropriate and I think it should
have been paired. I think the FEC needs to be fully staffed and
doing more but I have concerns that what I am hearing today is
a lack of truth coming from you because you want to be
appointed to this position instead of stepping up and being
proud of the work that you have done.
I disagree with the work but it is the work that you have
done over the years, not only as a staffer, but now as an
attorney. There are statements that you were very proud of
trying to get more Republicans back in office. You are on
record on saying that. If that is who you truly are, own it.
That doesn't--but I have concerns about the misinformation.
I appreciate you being here, but for that reason, I cannot
support you in this position and I appreciate you giving me the
opportunity to speak.
Chairman Blunt. Thank you, Senator. Senator Klobuchar.
Senator Klobuchar. Thank you. I appreciate Senator Cortez
Masto's work there and research, and thank you for your
highlighting of this. I wasn't aware of that. I wanted to sort
of take what the Senator has done here and just put it into the
real world. I know the questions were about the maps, but we
also know that there are big problems in Texas with regard to
everything from voting lists.
In fact, the Secretary of State resigned there recently
because of the problems that he had created but also there is
problems with access to voting, beyond even the redistricting,
which creates an obvious problem with access to voting. Super
Tuesday highlighted ongoing voting access and voting rights
issues. In Texas reports indicate that people waited hours in
line to vote.
Many have pointed to the fact that in Texas, the long lines
are the direct result of policies designed to disenfranchise
voters including the closure of polling places in heavily
minority areas. Some African-American voters waited more than 5
hours in line. When asked why they stayed in line, one voter
told a reporter, ``we thought they were making us wait on
purpose so we motivated each other.''
At Texas Southern University, Hervis Rogers, an African-
American man, waited 7 hours to vote after casting a ballot.
Reporters asked him where he was headed after waiting for so
long. He said he had to go to work. Mr. Trainor, you have
worked on elections in Texas for a long time as Senator Cortez
Masto has just pointed out. You served as general counsel to
the Texas Secretary of State. Why is this happening?
Mr. Trainor. I think the problems that we saw most recently
in the primary in Texas particularly, in Harris County, stem
from the fact that the County for the first time in a major
election went to countywide voting locations where you could
vote at any voting location.
The County selected those voting locations through the
Commissioner's Court, and when they did that, they did in fact
close down some because they were consolidating because now you
didn't have to go to your particular precinct to vote. It did
create lines. I think it is a technological issue that created
the problem.
I worked with individuals to notify the Secretary of State
that they were going to have these issues in Harris County.
Some of those polling locations are schools. Those schools have
the ability to block cell phone signals. Because you have a
countywide voting location, you need to have a constant online
access to be able to update the voting rolls when someone
votes, and in certain situations in Harris County, they
literally would have to take a machine outside of the school so
that it could upload frequently to get downloaded information
as to who voted and bring it back in. They had only tested that
system in municipal elections in May, a very small election.
When you had the turn out that we had in Texas recently,
massive turnout in both the Democrat and Republican primary,
with a system that was untried with that number of people, I
think that is what led to the long lines. My work as general
counsel at the Secretary of State's office, it was right after
HAVA had passed and we were implementing statewide voter lists
that HAVA required and we worked intimately with all of the
counties to be--to make sure that they had the type of access
that they needed and the type of voting machines that the
counties wanted in compliance with HAVA.
Senator Klobuchar. You know, I said from the beginning I
opposed your nomination, but if you are confirmed, what will
you do about this? You will have the power of FEC Commissioner.
Will you do anything to try to change this, what is happening
in your own state?
Mr. Trainor. Well, obviously, none of the voting activity
falls within the purview or jurisdiction of the Federal
Election Commission, but in my own state, as an individual who
votes there, you know, I can still continue to comment on these
issues and I think it is an important issue for Harris County
to look at as we get ready for the November election where I
think they will be even higher turnout.
Senator Klobuchar. Thank you.
Chairman Blunt. Mr. Trainor, when you worked for the
Secretary of State, the Secretary of State was Roger Williams
who has been a member of the U.S. House for some time now, so--
--
Mr. Trainor. That is correct.
Chairman Blunt. Your recent--when you said you contacted
the Secretary of State anticipating these problems, you were
doing that not as part of the office----
Mr. Trainor. Not as part of the Office. I am Assistant
General Counsel, currently, for the Republican Party of Texas,
and both parties, both the Republicans and Democrats, have
contacted the Secretary of State's Office to discuss the issues
present in Harris County with countywide polling locations.
Chairman Blunt. How is Harris County, how are those
elections administered? Are they administered by an elected
official or an appointed board?
Mr. Trainor. Well, they have an elections administrator who
is hired, and the County Commission hires that individual and
works closely with the County Clerk who is an elected Democrat.
Chairman Blunt. They don't, they report then--work closely
with the County Clerk appointed by the County Commission, the
election authority----
Mr. Trainor. Correct.
Chairman Blunt. But you tried to alert them to the fact
that this would be a problem?
Mr. Trainor. Yes. We had identified that issue in the May
municipal elections that it would create long lines and
ultimately that came to pass.
Chairman Blunt. Obviously, if your cell phone doesn't work,
you are not going to be able to call the help number or
whatever happens there and maybe not even be connected to any
online information the county office is putting out.
Mr. Trainor. That is correct. Countywide voting in Texas
has worked very well in some of our rural communities. It
started in Lubbock. It has worked very well. But as we you get
to the more populous areas, Dallas and Houston, countywide
polling locations have become more and more problematic because
the level of administration that it takes.
Chairman Blunt. This is way off field here.
Mr. Trainor. Yes. It is very far afield.
Chairman Blunt. As a former election official and state
election official as well, the legislature decided that
counties would have an option for countywide voting or every
County would have countywide voting where you could just go to
any polling place?
Mr. Trainor. In Texas, countywide voting started as a pilot
project for three rural counties in Texas. It has slowly been
adopted by more counties on a pilot project basis. Then, after
the most recent legislative session, it was made available to
all counties upon approval from the Secretary of State's
Office.
Chairman Blunt. You weren't part of the Secretary of
State's Office?
Mr. Trainor. I was not part of the Secretary of State
Office.
Chairman Blunt. When that was done or even when that
legislation was passed?
Mr. Trainor. Not at all.
Chairman Blunt. But you did step in and try to give advice
that this was going to be a problem?
Mr. Trainor. Yes.
Chairman Blunt. Could be a problem----
Mr. Trainor. Yes.
Chairman Blunt. Alright. Well, thank you for being here
today. I want to thank you for joining us. The record will
remain open until noon on Friday, March the 13th. Any questions
you get in the record and for the record, I would request that
you respond to as quickly as you can.
Chairman Blunt. The committee is adjourned.
[Whereupon, at 12:22 p.m., the hearing was adjourned.]
APPENDIX MATERIAL SUBMITTED
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