[Senate Hearing 116-383]
[From the U.S. Government Publishing Office]
S. Hrg. 116-383
NOMINATION HEARING FOR MEMBERS OF THE FEDERAL ELECTION COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
NOVEMBER 18, 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
42-427 PDF WASHINGTON : 2021
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... 3
Shana M. Broussard of Louisiana, to be a Member of the Federal
Election Commission............................................ 5
Sean J. Cooksey of Missouri, to be a Member of the Federal
Election Commission............................................ 7
Allen Dickerson of the District of Columbia, to be a Member of
the Federal Election Commission................................ 7
Prepared Statements of:
Hon. Ted Cruz, a U.S. Senator from the State of Texas............ 25
Shana M. Broussard of Louisiana, to be a Member of the Federal
Election Commission............................................ 26
Sean J. Cooksey of Missouri, to be a Member of the Federal
Election Commission............................................ 28
Allen Dickerson of the District of Columbia, to be a Member of
the Federal Election Commission................................ 29
Questions Submitted for the Record:
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Shana M. Broussard of Louisiana, to be a Member of the Federal
Election Commission............................................ 31
Hon. Ted Cruz, a U.S. Senator from the State of Texas to Shana M.
Broussard of Louisiana, to be a Member of the Federal Election
Commission..................................................... 33
Hon. Mark Warner, a U.S. Senator from the State of Virginia to
Shana M. Broussard of Louisiana, to be a Member of the Federal
Election Commission............................................ 33
Hon. Cortez Masto, a U.S. Senator from the State of Nevada to
Shana M. Broussard of Louisiana, to be a Member of the Federal
Election Commission............................................ 36
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Sean J. Cooksey of Missouri, to be a Member of the Federal
Election Commission............................................ 39
Hon. Mark Warner, a U.S. Senator from the State of Virginia to
Sean J. Cooksey of Missouri, to be a Member of the Federal
Election Commission............................................ 41
Hon. Cortez Masto, a U.S. Senator from the State of Nevada to
Sean J. Cooksey of Missouri, to be a Member of the Federal
Election Commission............................................ 45
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota to
Allen Dickerson of the District of Columbia, to be a Member of
the Federal Election Commission................................ 47
Hon. Mark Warner, a U.S. Senator from the State of Virginia to
Allen Dickerson of the District of Columbia, to be a Member of
the Federal Election Commission................................ 52
Hon. Cortez Masto, a U.S. Senator from the State of Nevada to
Allen Dickerson of the District of Columbia, to be a Member of
the Federal Election Commission................................ 58
NOMINATION HEARING FOR MEMBERS OF THE FEDERAL ELECTION COMMISSION
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WEDNESDAY, NOVEMBER 18, 2020
United States Senate
Committee on Rules and Administration
Washington, DC.
The Committee met, pursuant to notice, at 10:01, in Room
301, Russell Senate Office Building, Hon. Roy Blunt, Chairman
of the Committee, presiding.
Present: Senators Blunt, Klobuchar, Cruz, Capito, Wicker,
Fischer, Hyde-Smith, Udall, Warner, Leahy, King, 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 to--I want to thank my
colleagues for joining us today. I would like to welcome our
nominees to today's hearing. Shana Broussard, Sean Cooksey, and
Alan Dickerson are the President's nominees to be members of
the Federal Election Commission. As our witnesses are joining
us remotely, I also understand that their families and friends
are watching today, and so I welcome them as well.
This is a big responsibility. It is a significant
Presidential nomination and significant to the work of this
committee, and I know you are proud of your family member as
they have moved forward to this opportunity. Let me say a
little bit about a couple of the nominees and then I am going
to turn to another committee member, Senator Cruz, to talk
about the third nominee. Alan Dickerson is the nominee to be a
member of the Federal Election Commission for a term expiring
on April 30, 2025. Mr. Dickerson has been practicing law for 20
years, primarily in the areas of First Amendment and campaign
finance.
Since 2011, Mr. Dickerson has been the Legal Director of
the Institute for Free Speech, a nonprofit organization that
litigates First Amendment and campaign finance cases in state
and federal courts. He is also a Captain in the Judge Advocate
General Corps for the United States Army Reserve. He and his
wife Rachel have one child, Aurelia, and are expecting a second
child.
Shana Broussard is the nominee to be a member of the
Federal Election Commission for a term expiring on April 30,
2023. Ms. Broussard was born at Vandenberg Air Force Base in
Santa Barbara, California, but she truly hails from Louisiana,
as was clear with my visit with her this week. She graduated
from Dillard University in 1991 and Southern University Law
School in 1995. She has had a 25 year legal career, the past 12
of which she has worked at the FEC, first as an enforcement
attorney in the Office of General Counsel until 2015, and then
as Executive Assistant for Commissioner Walther since 2015.
Ms. Broussard also worked at the Internal Revenue Service
and in Louisiana as a prosecutor for the Attorney General and
New Orleans Parish District Attorney and as a Clerk of the 2nd
Circuit Court of Appeals. I would like to recognize Senator
Cruz to introduce our third nominee, Mr. Cooksey.
Senator Cruz. Thank you, Mr. Chairman. I am very proud
today to introduce Sean Cooksey as a nominee to the Federal
Election Committee. As the Chairman knows, he is from Missouri
and he currently works for the Junior Senator from Missouri.
But I am going to go ahead and claim him anyway as an honorary
Texan.
Not only did he clerk for one of the most respected
Appellate Judges in the country, Jerry Smith, in my hometown of
Houston, but he also worked on my staff as Deputy Chief
Counsel, serving the 29 million people of the great State of
Texas. Sean's impeccable educational credentials include
graduating summa cum laude from Truman State University and
receiving his J.D. from the University of Chicago Law School,
where he graduated with high honors and Order of the Coif. From
there, as I mentioned, he clerked for Judge Smith on the U.S.
Court of Appeals for the 5th Circuit before joining one of the
Nation's most respected law firms in D.C. as a litigation
associate focusing on appeals and constitutional law.
Most notably, as a young associate he worked on a Supreme
Court matter in which his client ultimately prevailed eight to
one. Then in 2018, Sean joined my staff as Deputy Chief
Counsel, working on a wide array of important and complex
issues including election law. He did a fantastic job, and we
were sad but also excited for him when he left in 2019 to serve
as Senator Hawley's Chief Counsel when Senator Hawley came and
joined us on the Judiciary Committee.
He still serves in that role doing an excellent job for
Senator Hawley, and he advises Senator Hawley on constitutional
law and judicial nominations, on election law, federal criminal
law, ethics compliance, and a whole lot more. My experience
with Sean has demonstrated to me that he is not only an
exceptionally talented lawyer, but he is also someone deeply
committed to the rule of law.
He will be prepared to hit the ground running on day one as
a Commissioner, and I have complete confidence that he will
faithfully apply the law fairly and neutrally. I would also
note that Sean and his wife Ellyn are expecting a baby this
winter. These are propitious times in the Cooksey household,
and I am proud to introduce my friend Sean.
Chairman Blunt. There you go. Thanks, Senator Cruz. Three
nominees, two babies on the way in two of these families.
Earlier this year, our committee gathered to confirm a nominee
to restore a quorum at the FEC. Since that confirmation of
Commissioner Trey Trainor, the FEC once again lost a quorum
with the resignation of Commissioner Hunter in July of this
year.
The confirmation of these three nominees before the
committee today will restore a quorum at the FEC. But more
importantly, the confirmation of these three nominees would
restore a full slate of Commissioners to the FEC for the first
time since February 2017. While the FEC is authorized to have
six Commissioners, it currently has only three. Only one
Commissioner, Commissioner Trainor, serves on an unexpired
term. The other two Commissioners serve on holdover status.
Their terms have been expired years ago, Commissioner Walther's
in 2009 and Commissioner Weintraub's in 2007.
While a quorum, a simple quorum, allows the FEC to hold
hearings, make new rules, advise through advisory opinions,
conduct investigations or approve enforcement actions, a full
slate of Commissioners means that the FEC is not hobbled and is
able to continue its work when a single Commissioner departs
the agency. For some time now, when one Commissioner left for
whatever reason, the Commission was not able to function.
Hopefully, our action through these hearings and later will,
for the first time again, restore six members to the
Commission. The Commission plays a vital role for federal
campaign committees.
As I mentioned in our last hearing for the last nominee, I
was former Secretary of State. I worked with the Commission on
a regular basis then, since I have been a candidate in nine
federal elections, which is probably about average for this
committee. The members of this committee and the Senate should
know the importance of a fully functioning FEC to federal
candidates who need to avail themselves of the FEC's guidelines
and advisory opinions.
We also know all the important stability that the agency
brings to the community that is regulated by the FEC. I look
forward to hearing testimony from our nominees today. I also,
again, let me say look forward to having a full slate of
Commissioners at the FEC and hope we are able to get that done
before the Congress adjourns this year.
I would like to turn to my good friend, Senator Klobuchar,
for her opening statement.
OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A UNITED STATES
SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
Today, as you note, we are here to consider three nominees to
the Federal Election Commission, which is, of course, the
independent agency responsible for enforcing our federal
campaign finance laws. First, I want to bring up the fact that
given this committee has oversight over federal elections, it
is important to acknowledge that nearly 160 million Americans
voted this year, more people than ever before in United States
history.
Even though we are in the midst of a global pandemic,
elections were administered successfully due to the hard work
of state and local officials, both Democratic and Republican
and independent state and local officials. Last week, officials
in charge of election security working in the Trump
Administration, including DHS people, Secretaries of State, and
the Election Assistance Commission put out a joint statement
that said the November 3rd election was the most secure in
American history. Again, this is a testament to local
officials, also to Chris Krebs who unfortunately was fired
yesterday by the President via tweet. But I know that he has a
respect, as I saw the statements from many Republican Senators
today, of many in the United States Senate. Regardless of that
unfortunate incident, I would say we all owe a debt of
gratitude to all these hardworking election officials.
Turning to the topic of today's hearing, with the
exception, as the chairman noted of a brief period this summer,
the FEC has been without a quorum for nearly 15 months. Over
that time, I have repeatedly urged my colleagues to work with
us to get the agency up and running. FEC nominees are typically
confirmed in bipartisan pairs. This spring, the majority chose
to push forward a controversial nominee without a Democratic
nominee. This approach opened the door to the FEC losing its
quorum just 46 days after it was restored. This persistent lack
of quorum is a major problem and we know why. We must have an
FEC that can enforce the law. The truth is, we need it more
than ever. The Center for Responsive Politics estimates
spending for the 2020 election cycle was approximately, ready
for this, $14 billion. That is more than double the 2016
election cycle, and it includes $2.6 billion in outside
spending by super PACs, political parties, and dark money
groups.
In order for our democracy to work for the people, 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 after the Watergate scandal to help restore the
public's faith in the electoral policy. Since taking over as
ranking member of this committee, I have worked with several of
my colleagues to propose solutions to try to get the agency
back on track, including a bill. At the very least, we should
work together to select strong, experienced nominees from both
parties who understand that their job is to enforce the law and
protect our election system. I am concerned about the views of
some of these nominees. I will briefly go through them. I did
have a good discussion with all three of them. I appreciate
that. I had the opportunity to discuss views such as social
media political ads and the need for the FEC to move forward
with rules regarding those ads, which account for billions of
dollars in political spending.
First, Mr. Dickerson has extensive experience in campaign
finance. Unfortunately, he has been focusing on less, not more,
transparency for political spending. He's opposed restrictions
on individual donations, attempts to bring transparency to
corporate and dark money spending after the Citizens United
decision, and efforts to stop foreign money from influencing
our elections. If we are going to break out of the gridlock
that has paralyzed the FEC, we need Commissioners that can work
together to find areas where they agree. It is my sincere hope
that Mr. Dickerson's views on the role of money and
transparency in politics do not make it harder to find
consensus with the other Commissioners.
Mr. Cooksey, already discussed by Senator Cruz, he does not
have an extensive record on campaign finance or election
issues, and his testimony for this hearing doesn't provide
enough information regarding his qualifications, his view of
the Commission, and how he plans his approach to his role if
confirmed. Again, I appreciated the fact that he talked to me
and we discussed some really important issues, and I
appreciated the words that we heard that they were willing to
work on issues like the political ads and the fact that we
don't have any set rules in place for social media ads.
Finally, we have Ms. Broussard and I so appreciated, Mr.
Chairman, your introduction of her. I have been urging the
White House to nominate her for more than a year. Our hope was
that she--months ago, she would have been confirmed to fill the
vacant seat. I won't go into all that, but let's talk about her
because she is great.
Ms. Broussard has served as a lawyer at the FEC for 12
years, both as a Staff Attorney and as a Commissioner Counsel
to a Commissioner. She is immensely qualified and well
respected by her peers. Her experience as an FEC staffer would
bring an important perspective to the Commission. She would
also be the first person of color to serve on the FEC. I hope
my colleagues that are here remotely listen to that. It is kind
of incredible, but there has not been anyone in the past, and I
can't think of anyone better to be the first. The pandemic has
shown us how resilient our democracy can be when dedicated
professionals work to respond to a crisis.
As I said, state and local election officials rose to the
challenge. Now it is time for the FEC to rise to the challenge
of the issues ahead of them. Of course, individual cases that
come before them, but then the key is modernizing some of our
rules and the like to make them more responsive to the
challenges of our elections of our time. Thank you very much,
Mr. Chairman.
Chairman Blunt. Thank you, Senator Klobuchar. We are going
to go to our testimony now from the witnesses. We, of course,
have your written statements in the record, but glad for you to
use up to 5 minutes in whatever way you would like to talk
about your background, the FEC, and what this committee should
be considering. Let's first go to Ms. Broussard.
OPENING STATEMENT OF SHANA M. BROUSSARD, OF LOUISIANA, TO BE A
MEMBER OF THE FEDERAL ELECTION COMMISSION
Ms. Broussard. Thank you. Good morning. Thank you, Chairman
Blunt, Ranking Member Klobuchar, and members of the committee.
It is an honor to appear before you today as a nominee for the
Federal Election Commission. I would like to first take the
opportunity to thank my brothers, Juan and Pierre Broussard. I
could ask for no greater cheering team than my brothers.
I would like to take a moment to say hello to my nephew
Tristen in Albuquerque, New Mexico. Tristen informed me this
weekend that he is working on an essay for his social studies
class, for a person that he admires. He told me it was a tie
between myself and my brother--his father, Pierre Broussard,
but this process has bumped me up in the rankings, so I want to
say hello to Tristen. Like my brothers, I would also like to
thank my friends and my Sorors, the women of Delta Sigma Theta
Sorority Incorporated, for their support and encouragement
throughout this process.
Under traditional times, I would have loved to have seen a
hearing room filled with women wearing red and white, but we
are not in traditional times. Still, their support has been
unwavering, and I must take a moment to thank the most
instrumental people in my life, my parents, James and Gainell
Broussard, of Gibson, Louisiana. My father retired from the
United States Air Force after 25 years of service to our
country. My mother is a retired middle school teacher, having
taught in the very same school that she attended as a child.
Together, they instilled within me a pride in public service
and a commitment to community that has guided the course of my
professional career, first as an Assistant District Attorney,
as a Deputy Disciplinary Counsel, and now with the FEC. For
more than a decade, I have worked every day to advance the
FEC's mission.
Although Congress created the FEC in 1975, the agency's
mission to protect the integrity of the federal campaign
finance process has never been more urgent. Now, more than
ever, it is time to work toward repairing the American people's
trust in this agency. Now it has never been more urgent for the
Commission to have individuals fill these seats who are
measured, impartial, and focused on building consensus. As an
FEC attorney, I carefully considered each enforcement matter
before me, making sure that my recommended dispositions were
supported by facts and the law. My recommendations were fair
yet firm, and were always made with an aim toward promoting
transparency.
As Counsel for Commissioner Steven Walther over the last 6
years, I have worked with Commissioner offices to build
consensus on everything from resolving enforcement matters and
management issues to the Commission's budget. I am grateful to
Commissioner Walther for this opportunity. He is an example of
how to reach across the aisle to get work done at the
Commission. I also take this opportunity to thank Commissioner
Ellen Weintraub. She too has been supportive, and her
dedication to the agency and its mission is unsurpassed.
When I started working for the American people 12 years
ago, I never envisioned that I would be testifying today before
this committee on my qualifications and an interest in serving
as the Commissioner. The opportunity to lead the Commission
rarely comes to those already working within the Commission,
but it is this very experience, working day to day, side by
side with the FEC staff in support of the agency's mission that
makes me uniquely prepared to serve the American people.
If confirmed, I will approach my work as a Commissioner as
I have done throughout my career in public service, with
diligence, impartiality, and with integrity. But equally
important, I will serve with the utmost appreciation and
respect for the hard work of the staff. Having served with
them, I bring a new perspective to agency leadership.
Furthermore, if confirmed, I would be the first African-
American to serve on the Commission. This historic fact cannot
be ignored. 45 years after the establishment of this agency, it
is time that the agency designed to promote the integrity of
our elections for the American people look a little more like
the American people.
Mr. Chairman, ranking member Klobuchar, and members of the
committee, thank you for the opportunity to appear today and I
welcome any questions that you may have. Thank you.
[The prepared Statement of Ms. Broussard was submitted for
the record.]
Chairman Blunt. Thank you, Ms. Broussard. We are glad to
have you with us today. Let's go to Mr. Cooksey next. Sean
Cooksey.
OPENING STATEMENT OF SEAN J. COOKSEY, OF MISSOURI, TO BE A
MEMBER OF THE FEDERAL ELECTION COMMISSION
Mr. Cooksey. Good morning, Chairman Blunt, Ranking Member
Klobuchar, and members of the committee. It is an honor to
appear before you. I would like to thank both the chairman and
the ranking member for convening this hearing to consider my
nomination to the Federal Election Commission, and I would like
to thank President Trump for nominating me. I would also be
remiss if I did not thank the committee staff and the White
House staff who have helped with my nomination.
I do not have an opening statement, but I would like to
acknowledge some important people. First and foremost is my
wife, Ellyn. She is my hero and an unwavering source of love
and support. I thank my parents, Ken and Susan Cooksey, for all
of their patient love throughout my life. I am fortunate to be
their son. I am also grateful to my two brothers, my
grandmother, and the many friends and colleagues who have
encouraged me along the way.
Finally, I am indebted to three mentors. The first is Judge
Jerry Smith of the United States Court of Appeals for the 5th
Circuit, for whom I was lucky enough to clerk after graduating
from law school. The second is Senator Ted Cruz, who gave me my
first job in the United States Senate and has been a role model
for me ever since, and I thank Senator Cruz for his very warm
introduction. Last, I would like to thank my current boss,
Senator Josh Hawley, who entrusted me to work for the people of
Missouri as his General Counsel. It has been the honor of a
lifetime to serve on his staff.
With that, Chairman Blunt and ranking member Klobuchar,
thank you again for holding this hearing, and I look forward to
your questions.
[The prepared Statement of Mr. Cooksey was submitted for
the record.]
Chairman Blunt. Thank you, Mr. Cooksey. Let's go to Allen
Dickerson for any comments you would like to make, Mr.
Dickerson.
OPENING STATEMENT OF ALLEN DICKERSON, OF THE DISTRICT OF
COLUMBIA, TO BE A MEMBER OF THE FEDERAL ELECTION COMMISSION
Mr. Dickerson. Well, thank you and good morning, Chairman
Blunt, Ranking Member Klobuchar, members of the committee. It
is a privilege to appear before you this morning to discuss my
nomination. I am grateful to the President for his confidence
and to this committee for providing me with this opportunity.
I am sorry we are meeting by video conference. It is a wise
and responsible decision, but something is lost when an event
of this gravity is held remotely. For me personally, that
includes the ability of my wife Rachel to be present in person.
I understand that she has taken a break from her work as a
child psychologist to view a remote feed, but the fact that she
is not physically present does nothing to diminish my great
appreciation and affection for her as a woman, wife, and
mother. Nor does it lessen the many sacrifices that she has
made to support my career and to allow me this opportunity for
public service.
While our daughter is too young to follow today's
discussion, I do hope that in the fullness of time she will be
proud of her father's career in the law and his service to his
country. It has been a long road for me from California's
Mojave Desert to a hearing before the United States Senate. I
am grateful to my parents, Terry and Gail, and to my sister
Iris, for setting me on the path. Finally, my thanks go to my
colleagues at the Institute for Free Speech for nearly a decade
of warm collegiality and partnership. I have spent the last
several years bouncing between two very different worlds.
As Legal Director of the Institute for Free Speech, I
represent clients in court, and advocate in public for a robust
view of the First Amendment. In that capacity, I have
represented clients from across the political spectrum,
including Republican elected officials and donors, the
Libertarian National Committee, the Progressive San Francisco
Ballot Committee, and the Coalition for Secular Government. I
have authored scores of briefs joined by groups as diverse as
Color of Change and the Tea Party Patriots, the ACLU, and the
Cato Institute. At the same time as an officer and lawyer in
the Army Reserve, I advise soldiers in the very different
context of uniformed service. There, the rights of expression
and association take a different form, limited by the needs of
the service and the requirements of good order, discipline, and
fidelity to the chain of command.
From both roles, I have come away with a great respect for
the diversity, character, and wisdom of the American people,
and I have developed a deep trust in the vibrancy and
resilience of American institutions. Congress created the FEC
to protect those institutions. In the aftermath of Watergate,
as Ranking Member Klobuchar noted, it established the
Commission to prevent corruption and to enlighten the American
voters as they choose our representatives. It is an important
role and it is a challenging one, because all of us, members of
the Bar, of Congress, courts, and the Commission have worked
hard over many years to find the delicate balance between a
legitimate anti-corruption and disclosure interests of the
Government on one hand, and the First Amendment rights of the
citizenry on the other.
If the Senate chooses to confirm me, I will work every day
to provide the American people with an independent Commission
that faithfully administers the law as Congress wrote it and
the courts have interpreted. Just as when I don or doff the
military uniform, I recognize that I have been asked to apply
my experience to a new role, and I am prepared to work hard in
the service of this agency and its public role.
If confirmed, I look forward to working with my colleagues,
both here and those already at the Commission, and with the
dedicated civil servants at the FEC to explain a complex body
of law, clarify it where appropriate, and enforce it in a fair
and nonpartizan manner that Congress envisioned.
Thank you again for the opportunity to be here, and I look
forward to your questions.
[The prepared Statement of Mr. Dickerson was submitted for
the record.]
Chairman Blunt. Well, thank you, Mr. Dickerson, and thanks
to all three of you. We do have the votes at 11 a.m. I think I
am going to ask my questions last to be sure everybody has a
chance to get their questions asked. I am going to give the
first set of questions that I would normally ask to Mr. Cruz.
Senator Cruz. Thank you, Mr. Chairman. Congratulations to
all three of the nominees. Let me start with just a general
question. What, in your view, is the responsibility of the FEC
and what would your responsibility be as Commissioners?
Mr. Cooksey. Senator Cruz, I am happy to take that question
first. The responsibility of the FEC is to fairly and
efficiently administer and enforce the campaign finance laws as
Congress has enacted them and consistent with the Constitution
and the rulings of courts. My responsibility as a Federal
Election Commissioner would be to do just that, enforce the law
as I see directed by Congress, and to do so in an impartial and
effective and fair manner.
Mr. Dickerson. Senator, I would agree with that
characterization and add to that the appropriate discharge of
our oath in that regard is intended to and I hope will have the
effect of increasing the American public's confidence in our
election process.
Ms. Broussard. Thank you, Senator. I also want to
conclude--not conclude, but concur with my fellow nominees.
Senator Cruz. Let me ask another question, in your
judgment, what is the relationship between federal campaign
finance law and the First Amendment to the Constitution?
Mr. Dickerson. Senator--go ahead.
Mr. Cooksey. Senator, the Constitution, of course, is the
paramount law of the land. It always controls over any
statutory law. As an FEC Commissioner, of course, I would be
bound to uphold the First Amendment, first and foremost, but
also to administer the statutes as far as Congress has passed
them, consistent with that amendment and as interpreted by the
courts.
Mr. Dickerson. Senator, I agree that is absolutely correct.
I would add that as a doctrinal matter, campaign finance law is
an exception, albeit a well-established and long running
exception, to the general prohibitions of the First Amendment.
It is part of why the FEC's work is so important in explaining
how all of this fits together for all involved in the political
process.
Chairman Blunt. Ms. Broussard, are you going to respond to
that?
Senator Klobuchar. I think she may be cutoff.
Chairman Blunt. Maybe video is not working right now for
her.
Senator Klobuchar. Or the phone, so she will have to get
back on.
Chairman Blunt. Right.
Senator Cruz. Alright, well, for Ms. Broussard, I would ask
that she answer that question in writing then afterwards.
Because sorry, we are having technical difficulties. Thank you,
Mr. Chairman.
Chairman Blunt. Senator Klobuchar.
Senator Klobuchar. Actually might defer to someone else
till she gets back on. Okay. If another Senator wants to go.
Ms. Broussard. Hello?
Senator Klobuchar. Okay. Are you on, Ms. Broussard?
Ms. Broussard. Sorry, I apologize. I think that is the
technology that we are working with today.
Senator Klobuchar. Well, if it makes you feel any better,
Ms. Broussard, at a judiciary hearing recently, Mr. Zuckerberg
had trouble getting on, the head of Facebook. Don't worry about
it. Oh, it was Commerce. The commerce----
Chairman Blunt. Technical challenge.
Senator Klobuchar. Yes, that was--that happened. Alright. I
wanted to first ask you, Ms. Broussard, about the--we talked
about this over the phone, as I did with the other two
nominees, the weak disclaimer and disclosure rules on online
political ads. We know in 2016 this was--there were actually
ads paid for by Rubles. Fortunately, some of the companies have
changed some of their policies, so that has gotten better. But
I asked Mr. Zuckerberg about this just yesterday.
We continue to have issues with ads and including ads that
aren't looked at by human beings and then get through and are
not true. I have this Honest Ads Act, which is bipartisan
legislation with Senator Graham that would apply the same
disclosure and disclaimer rules on political ads that we have
for TV, radio, and print.
Could you talk about your views on this? If you think the
FEC could also take care of this. One thing is important to
look at, it is not just candidate ads, it is also issue ads.
Ms. Broussard.
Ms. Broussard. Thank you. The Honest Ads Act would
obviously increase or expand the definition of public
communication to the online political spending. I see this as
an opportunity to increase transparency ads with the Honest Ads
Act, but also prevent the direct or indirect spending of
foreign entities into our political discourse, which would
provide a greater transparency to the American people.
As it relates to the FEC, if Congress enacts this law, it
would be, of course, the responsibility of the Commissioners to
work together to craft regulations that would affect that. I
think the greatest start would be look at the rulemaking or the
Internet disclaimer rules that, excuse me, are currently before
the Commission now and that is stalled as a result of the lack
of quorum. That rulemaking impact had an expansion or inclusion
of the definition of a public communication, but the Honest Ads
Act would obviously take it into a broader perspective and work
on a greater transparency.
Senator Klobuchar. Right. The way I look at it, the
Commission could do some of this by rule and then the law would
be very helpful to get into place. Mr. Dickerson, last year in
a speech, you argued that online political ads should not be
regulated because the amount is such a small portion of
political speech. I just want to make sure you know that as of
2018, Facebook and Google collectively sold over 16 million
political ads worth over $3.2 billion.
I don't think I have the 2020 numbers on them, but what I
do have is a number on broadcast ads, $2.5 billion in 2020,
just to give you some comparison. If you look at over $3.2
billion on just two platforms, that is only three, two in the
last 3 years. Where are you on this still? I know we talked
about this over the phone, but we are just simply, Senator
Graham and I are trying to make sure that the rules applied are
the same on both TV broadcast as they are when it comes to
these social media platforms.
Mr. Dickerson. I appreciate the question and thank you for
the chance to comment on it. You know, the difficulty in this
area is that there are two lines of Supreme Court precedents,
as you know. There is one which says that there is a right of
privacy, of association, and belief under the First Amendment.
The other is that there is this need for transparency in
certain types of political spending. That is a very difficult
balance.
As I have said publicly and in our call, Senator, you know,
I do think that those sort of balancing questions are best left
to the wisdom of the American people's elected representatives
in Congress. I have been skeptical of the difficulties of
bridging that gap in a way that would survive judicial review.
But I made those comments in the role of an advocate in public,
and I do not consider it the appropriate role of an FEC
Commissioner to stand in the way of legislation.
Senator Klobuchar. Okay, thank you. As you know what--it
will before you if you get confirmed to this rulemaking. I hope
you will remain open to it and we will take that same open
view. My last questions, for years, the FEC has frequently
deadlocked in votes about whether the agency staff should
investigate potential violations. Many believe that these
deadlocks have significantly impaired the agency's ability to
investigate potential criminal activity, regardless of the
candidate's party, and enforce the law.
In order to start an investigation, four Commissioners must
find that there is a reason to believe there has been a
violation of the law. I would ask each of you, if there are
reliable public reports about a potential violation of the law,
would that be enough to vote to open an investigation? If you
want to just go in the order you were introduced, that is fine.
Mr. Cooksey first.
Mr. Cooksey. Thank you for the question, Senator. I think
the standard for finding reason to believe is obviously a vague
legal standard. It is one that can't be particularly
quantified. I would say that credible news reports could be
part of the evidence for finding reason to believe. I don't
know if I could say as a categorical rule they would always be
relevant, but I would certainly keep an open mind to including
those in finding a reason to believe.
Senator Klobuchar. Well, if you need additional information
beyond public reports, would you support reaching out to
federal agencies to get additional information? As you know,
there is a strong relationship between DOJ and the FEC.
Mr. Cooksey. Yes, Senator, I think referrals from federal
agencies are oftentimes a very credible source of potential
investigations on the civil enforcement side of the FEC.
Senator Klobuchar. Okay. Thank you. Mr. Dickerson, same two
questions about----
Mr. Dickerson. Yes, I would completely agree with Mr.
Cooksey that the decision to find reason to believe is going to
be case by case, but certainly reliable public reports of
specific facts that raise--that would fall within the legal
definition of a violation would be the sort of thing that would
be strong evidence for finding reason to believe.
Senator Klobuchar. You would be open to getting additional
information beyond public reports by reaching out to federal
agencies to get the information?
Mr. Dickerson. As I understand it, Senator, other agencies
and the FEC are required by statute to coordinate in that
manner. I would urge that.
Senator Klobuchar. Very good. Ms. Broussard, do you want to
finish up here so I can turn over to our colleagues?
Ms. Broussard. Everything that my co-nominees have said I
agree with. If there is sufficient information available in the
complaint, there is a reason to look further and I would
support any recommendations that come before me if I am
confirmed with such information.
Senator Klobuchar. Thank you very much. Thank you to all of
you.
Chairman Blunt. Thank you, Senator Klobuchar. We will next
go to Senator Capito followed by Senator Udall.
Senator Capito. Thank you, Mr. Chairman. I thank the
Ranking Member as well, and I say congratulations to the
nominees on your nomination for this very important role.
This--I have a question really for all nominees, because as we
know, the FEC is unique among independent agencies in that
neither party is allotted a majority of seats. When the
Commission is fully constituting the backing of at least one
Commissioner from each party, it is necessary to form a
majority for many of the--for the enforcement actions. This
adds to the Commission's legitimacy by ensuring that the FEC
cannot impose politically motivated penalties.
I think that is great, but it does present challenges. This
structure, however, can make it difficult sometimes to resolve
certain cases. I will start with Ms. Broussard. I'm sure she
has seen this as a staffer on the committee. How would you work
with other Commissioners, including those across the aisle, to
resolve these matters in a fair and bipartisan way? I would be
interested to know from your experience with the FEC, has this
been an enormous problem, a small problem, or how does it
present challenges?
Ms. Broussard. Thank you for the question. I have, as you
have already said, I have quite a few years of experience
inside the agency, so I am familiar with this concept. First I
would like to say, by restoring a full Commission, it creates a
better opportunity for less of a deadlock. It creates the
opportunity for consensus. It actually creates a better road
map so that it requires that people truly communicate together
for resolution so the American public can have full disclosure.
I have a wealth of experience in working across the aisle
because working for Commissioner Walther as one of his
counsels, we had the opportunity to kind of obviously drill
down into the weeds of cases and sometimes it might not work
with one Commissioner. When you have six Commissioners, you
have an opportunity to reach to another person and this builds
consensus. This is truly having a full body at the Commission
is the perfect opportunity for people to work together to find
resolution.
Senator Capito. Thank you. Mr. Dickerson?
Mr. Dickerson. I completely agree. As a big believer, as a
litigator in the adversarial process, I think the more voices
and the better vetting you have on a legal question, the easier
it is to find the nuance and find agreement. You know, I would
note that much of what the Commission does, does not fall
victim to deadlocked votes. That even in contested matters,
votes in the Commission that do not reach majority are the
exception and not the rule.
I would hope that would continue to be the case because I
think the ability of the Commission to give guidance to the
regulatory community is helped by majority formal rulemaking in
a way that divided votes don't necessarily provide the same
level of certainty. I would hope to join my colleagues in
reaching toward that goal.
Senator Capito. Thank you. Mr. Cooksey?
Mr. Cooksey. Thank you, Senator. I think you are right that
the structure of the Commission is somewhat unique and an
important feature to ensure the legitimacy of the Commission's
action. I think deadlocks are a consequence of that, but I
can't really improve on what my fellow nominees have said. I
think often it is a mechanism that forces compromise, that
forces consensus building. As someone who comes from a
background in the legislative branch, I feel I am very used to
that sort of dynamic and finding compromise and finding common
ground. It is something that I would be committed to doing if I
am lucky enough to be confirmed.
Senator Capito. Thank you, Mr. Cooksey. Mr. Cooksey, I
would--let me just continue with you. You have been counsel to
Senators Hawley and Cruz before. You have advised them on
constitutional law, judicial nominations, and election law. You
just touched on it a little bit but I didn't know if you want
to flesh out more how your legislative experience would help
you in your role if you are confirmed as an FEC Commissioner.
Mr. Cooksey. Thank you for the opportunity to discuss that,
Senator. I think my role as a legislative staffer would bring a
unique set of skills and a unique set of experiences to the
Commission.
I have a lot of experience working across the aisle,
working with--in a small setting, with a small committee--a
small number of committee members, and forging a lot of
important compromises, you know, even if we can't agree 100
percent of the time, finding those areas we can agree and
moving forward. I think there is also a long and important
history of people who have gone on to the FEC from a
legislative background like mine and who have gone on to make
very big contributions there.
Senator Capito. Thank you. Ms. Broussard, just my last
question to you is, and I don't know the answer to this, I am
looking for information from you as an informed staffer. Are
there a lot of backlog cases because the Commission has not
been functioning properly?
When you have these kinds of situation where you do have
backlog, what has been the experience with the Commission to be
able to prioritize certain areas, maybe it is timeliness, maybe
it is, you know, amounts of dollars or the amount of people
that affect--how do you prioritize when you have backlog? First
my first question is, is there a large backlog? I don't know
that. If there is, how would you prioritize?
Ms. Broussard. Thank you. The quick answer to your
question, Senator, is yes, there is a large backlog. This is
public information available. The status of enforcement
quarterly reports are published on the FEC's website, and it
reflects that as of present or the close to the last quarter,
there are 380 cases of the enforcement division, with 200 that
are before the Commission awaiting vote.
The obvious answer to your question is there is a backlog.
But what I think the intent would be, if confirmed, would be to
prioritize those enforcement cases based on the statute of
limitations. Those matters that are within that 5 year
limitation of the statute, we would be able to assess the
severity of the allegations, prioritize those that have a
greater harm to the public or higher prioritized matters, and
compare that based upon the statute of limitations. I would
suggest that we, working in consensus, put those cases first on
the enforcement agendas.
Senator Capito. Is that something, when you are seeking to
prioritize, that you have to have agreement with the
Commissioners on? I mean, do the Commissioners set the agenda?
Is that how that is done?
Ms. Broussard. Well, as it relates to the enforcement
agenda, the executive sessions, it is usually set by the chair
of the Commission, which, as you know, alternates each year.
Whomever is the chair would determine the agenda. That would be
a priority for the chair, which I believe if confirmed, I would
prioritize those matters that are, if I were the chair of
course, would prioritize those.
Senator Capito. Alright. Thank you all very much. Thank you
and good luck. Good answers. Thank you.
Ms. Broussard. Thank you.
Chairman Blunt. Thank you, Senator Capito. Senator Udall.
Senator Udall. Thank you so much, Chairman Blunt and
Ranking Member Capito. I have closely followed the work--
Ranking Member Klobuchar, excuse me--get to listen to you two.
I have closely followed the work of the Federal Election
Commission and have pushed for reform of the Commission during
my time in the Senate. I believe that in its current state, the
FEC has failed to uphold its mission and I am quoting here on
the mission, ``to protect the integrity of the federal campaign
finance process by providing transparency and fairly enforcing
and administering federal campaign finance laws.'' Congress
created the Federal Election Commission to fight political
corruption after Watergate.
But more recently, partisan gridlock left the agency
powerless to enforce the few campaign finance laws remaining on
the books. In 2016, we saw record spending of millions of
dollars in undisclosed dark money, and we have seen the
spending continue and on and on. Without a strong watchdog
looking over their shoulders, super PACs and billionaire donors
have had free rein to push the limits.
I disagree profoundly with Citizens United and the Supreme
Court's other campaign finance decisions, but we have to
acknowledge that the court is not the only one 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. For the last decade, GOP
Commissioners have blocked every attempt to close loopholes in
FEC regulations that allow dark money groups to flourish.
The FEC has failed to compel groups to spend virtually all
of their money on political advocacy to register as PACs, which
would require them to disclose their donors. After 2018, we now
know that there were efforts to secretly funnel foreign
campaign money to candidates, deliberately violating our
campaign finance laws to interfere in the outcome of those
elections. I believe that a decisive FEC that can judiciously
enforce campaign finance violations is crucial to maintaining
the legitimacy of our elections and our democracy.
Traditionally, FEC nominees have moved in bipartisan pairs.
But what troubles me about today's set of nominations is the
posture. Republicans broke with a long held Senate tradition
when they refused to move a Democratic nominee with
Commissioner Trainor's nomination and are now advancing
Republican nominees after the recent Presidential election.
While it is time for the FEC to be fully functional again,
there is still more work to be done.
Ms. Broussard, thank you for joining us today. You have
successfully built a career dedicated to public service and
have served as an attorney for the FEC in the Office of General
Counsel since 2008. Given your experience, what would you
recommend the Commission do to improve its effectiveness? Are
there specific ways the FEC can increase election finance
transparency within its current structure?
Ms. Broussard. Thank you, Senator. To answer the question
regarding specific ways to increase transparency, from a
perspective of educating the public on the voluntary
compliance, we currently have quite a few webinars and
everything in place that gives our political stakeholders the
opportunity for educational advancement. So, as a working FEC,
I consider that a means for us to be able to advance the goals
of disclosure to the public by promoting that voluntary
compliance. I must have to say, if I could, I apologize, but if
I could ask you to repeat the first half of your question
again, I would be happy to answer it. I apologize.
Senator Udall. Sure. Let me give you that one for the
record, because I want to ask one more question here of the
other nominees. Since the Presidential election, President
Trump has made several claims of voter fraud. However, judges
have repeatedly and overwhelmingly ruled against the Trump
campaign's claims of fraud.
GOP election officials in key states have also disagreed
with these baseless claims. Just last week, the Cybersecurity
and Infrastructure Security Agency issued a statement calling
the 2020 Presidential election the most secure in American
history. Mr. Dickerson, Mr. Cooksey, do you believe that there
was widespread election fraud in 2020? Do you believe that it
is wrong for individuals to suggest that there was widespread
fraud without any proof?
Mr. Cooksey. Thank you for the question, Senator. I do not
have any personal knowledge of any widespread voter fraud that
happened in the most recent election. I know that there is
ongoing litigation by various candidates about the consequences
or the outcomes of the election, but I haven't followed it
myself and can't speak to it in detail.
Senator Udall. Thank you.
Mr. Dickerson. Senator, thank you for the question. The
only thing I would add to Mr. Cooksey's response is to remind
the committee emphatically and anyone who is watching this that
the FEC has no role whatsoever in election administration or in
judging electoral outcomes. I think it is important that the
FEC remain within the four corners that Congress set for it.
Senator Udall. Yes. But remember, as officials in official
positions, when issues come up like this, you are going to be
asked and it is important that people speak truth to power.
Thank you so much, Mr. Chairman.
Chairman Blunt. Thank you, Senator Udall. Senator Warner is
ready for questions. We will go to him. If not, we will go to
Senator Hyde-Smith.
Senator Warner. Well, thank you, Mr. Chairman.
Chairman Blunt. Senator Warner.
Senator Warner. I am ready and I am here. I apologize about
the sun coming in the wrong way. I want to actually pick up
where Senator Udall left off. I got to tell you, Mr. Dickerson,
I am pretty amazingly disappointed by your last answer. The FEC
is parked along with the Election Assistance Commission, DHS,
CISA, all parts of the group that ensure the integrity of our
election system, and that goes from voting machines to
transparency around election contributions.
My agreement with Ranking Member Klobuchar on her great
work, which I am proud to be a partner on, Honest Ads Act. I
know, sitting from my position, the chairman who I had the
opportunity to serve on the Intelligence Committee, if you
would have asked us 30, 45 days out from this election with the
potential of foreign interference, with the potential of people
showing up with long guns at our polling stations, with the
potential of many of our intelligence and law enforcement
agencies concerned about prior to and immediate aftermath of
violence at our polling stations--I think Americans responded
remarkably, we had record turnout.
I think our poll workers and officials did great jobs. I
think our Secretaries of State--we have got former Secretaries
of State on this on this panel with Senators uniformly in both
parties----did a good job. I frankly am outraged that--CISA--
the entity responsible for election security, have indicated
that this was the safest and most secure election in our
history. I think it was remarkable to me that the President
then fired the head of CISA last night.
I want to give you, Mr. Dickerson, and all three members of
the panel a chance to answer again. Do you not feel that the
integrity of our election system is part of the responsibility
of the FEC? You have--none of you want to weigh in at all on
whether the elections that just took place were conducted in a
safe and fair way or not? You are also to be election security
expert, election experts.
You must have an opinion on whether these elections were
conducted appropriately or not. I will ask each one of the
panel to respond briefly, because I have got one other quick
question for the record.
Mr. Dickerson. Senator, I appreciate the opportunity, in
particular because I share your concerns and those on the
Intelligence Committee for foreign influence and meddling in
American self-Government. I think, my comment, which I do stand
by, is to note that combating that risk is a Government-wide
mission.
As you pointed out, Senator, there are other larger, more
expert, and better resourced agencies, some of which you
mentioned, but I would add the Intelligence Community itself,
the Department of Defense, the widespread abilities of the
Department of Justice in this area that are simply a better
fit, given the way----
Senator Warner. Mr. Dickerson, I don't need a long--I mean,
if you were to become confirmed, you do not think a role of the
FEC Commissioner is to also try to support the integrity and
confidence that Americans have in our election system?
Mr. Dickerson. Absolutely, I do.
Senator Warner. Is that confidence undermined when people
recklessly, without proof, attack the election results or when,
again, I will get into the firing of Mr. Krebs, which I think
was extraordinarily inappropriate. But I am looking for FEC
Commissioners who want to stand up for rule of law and stand up
for speaking out when the integrity of our system is being
attacked. I get the other--Mr. Chairman I am probably running
out of time, but very briefly, could I get the other two
witnesses to respond?
Chairman Blunt. Certainly can.
Ms. Broussard. I am happy to respond, Senator. I apologize
for speaking over. I agree with you, Senator. I think the part
of the responsibility of a Commissioner with the Federal
Election Commission is to promote the integrity of the federal
election process and protect the disclosure of information,
which also protects the American public from being--the
election process itself.
I don't have any information, as a fellow nominee
mentioned, that the only thing that there was any evidence of
voter fraud and we also have public reports from national
resources--CISA--being that we did not have any issues with
this election and that it was quite a fair election and it has
already been mentioned that we had an excellent amount of voter
turnout, which I find extremely exciting.
I think the opportunity for as a Commissioner to verbally
promote the safety, the quality, the fairness of elections is a
responsibility, although we are specifically tasked with
enforcing FICA.
Mr. Cooksey. Senator, to be brief, I agree with what my
fellow nominees have said. The principal mission of the FEC is
to promote transparency and accountability in the campaign
finance system, but FEC Commissioners are public figures and
have a broader responsibility to promote integrity and American
confidence in our elections.
Senator Warner. Thank you. Mr. Chairman, I know I don't
often get to my Rules committee meetings and I know I may have
gone beyond my time, so I won't ask my last question or I won't
be invited back. Thank you and Senator Klobuchar for your
leadership.
[Laughter.].
Chairman Blunt. Well, there will be a chance for questions
for the record as well. Senator Warner, thanks for your time--.
Senator Klobuchar. Mr. Chairman, I also want to thank
Senator Warner for his work in the Honest Ads Act. I had
omitted mentioning him so thank you.
Chairman Blunt. Senator Hyde-Smith.
Senator Hyde-Smith. Thank you, Mr. Chairman, and thank you
everyone for being here today. This is really important that we
fill these positions. As you well know, these vacancies have
been there for a while. I just have questions on how will your
personal views or previous work affect decisions that you might
make on questions that come before you as a FEC Commissioner,
and how would you go about recusing yourself if you thought
that there was a need for recusal?
Mr. Dickerson. Thank you, Senator. I will take first shot
at that, because I am the person up here who has represented
clients most recently. In terms of the recusal process, and I
expect my clients--my colleagues have also filed letters with
the Commission outlining our responsibilities to recuse. I
would add just personally that I consider those rules a floor
and not a ceiling. I could imagine cases in which the
perception of entanglement would lead me to recuse even if the
rules didn't require it. But those would case by case questions
that would arise as things develop.
Senator Hyde-Smith. Thank you.
Mr. Cooksey. Thank you, Senator. I agree with what Mr.
Dickerson said. I think recusal is very important at the FEC as
a Commission that is tasked with promoting confidence and
integrity in the election process. I am not aware of any
specific recusal needs, but I am committed to applying the
recusal standard in an exacting and careful way. If ever there
is a situation in which I think it might be implicated, I will
commit to consulting with the career staff and my colleagues to
make sure that it is followed to the letter.
Ms. Broussard. Senator, the answer of the fellow nominees,
I feel is directly on point. I, too, have been in discussions
with our ethics counsel to fill out a form that would tell us
if we have the grounds for recusal. I think the most important
thing is that we remain impartial, integrity, and that if we
had any questions, we take advantage of the ethics resources
that we would have available to us. Thank you.
Senator Hyde-Smith. Thank you.
Chairman Blunt. Thank you, Senator Hyde-Smith. If Senator
Leahy is available, we will go to him. If not, we are going to
go to Senator Cortez Masto. Senator Leahy, you are recognized
for 5 minutes.
Senator Leahy. Thank you. Is this coming through?
Chairman Blunt. Yes, it is. Yes, it is.
Senator Leahy. Okay, good. Thank you. Appreciate having
this opportunity. Each of you being nominated to the FEC at a
critical moment. The FEC was created to promote confidence and
participation in a democratic process. That is more difficult
today when you have a President who almost every public
statement, a tweet undermines public confidence in our
election, seeks to suppress legally cast votes.
But his temper tantrum tweets aside, all serious federal
and state election officials, both Republicans and Democrats,
have stated unequivocally that our election results are
legitimate. Now, I will ask a question for each of you and you
can answer yes or no. Is Joe Biden the President-elect of the
United States? Yes or no?
Ms. Broussard. Yes.
Mr. Cooksey. Senator, I am aware that most media
organizations have projected that former Vice President Biden
has won the election.
Senator Leahy. Do you accept that?
Mr. Cooksey. I have no reason to doubt it.
Senator Leahy. Thank you.
Mr. Dickerson. I agree with Mr. Cooksey, subject to the
outcome of litigation.
Senator Leahy. Most of you have experienced litigation, as
you know, virtually all of those cases have been dismissed,
thrown out or withdrawn. I do realize Mr. Giuliani gave a Four
Seasons discussion that strayed and brought somebody from out
of the state, a sex offender, to give some baseless charges.
But everything else has been pretty much thrown out.
President Trump's own Department of Homeland Security has
said this was the most secure in American history of elections
and there is no history that anything that--there were deleted
or lost votes, changed votes or were compromised. Do you agree
with President Trump's Department of Homeland Security in that?
Mr. Dickerson.
Mr. Dickerson. Senator, in all frankness, I have very
little expertise in that area. As you might imagine, my
attention has been dedicated toward this hearing. I am really
not in a position to give any useful commentary on activity at
DHS in recent weeks.
Senator Leahy. I would tell you, the FEC Commissioner
Weintraub, recently observed that very few substantiated
complaints of voter fraud or illegal votes. Would you agree
with that? Do you have any reason to disagree with that?
Mr. Dickerson. I have no reason to disagree. Commissioner
Weintraub is an excellent attorney.
Senator Leahy. Anybody else want to add to it?
Mr. Cooksey. Senator, I agree with what Mr. Dickerson said.
I have no personal knowledge or reason to doubt the statement
of DHS.
Ms. Broussard. Senator, I do not doubt the statement, DHS
statement.
Senator Leahy. Thank you very much. Mr. Dickerson, you
criticized state efforts to limit companies with foreign ties
from contributing money to state campaigns, as we do in my own
State of Vermont. We want to make sure there is no foreign
interference in our elections. I hope we all agree with that. I
ask, is it ever appropriate for an American candidate for
public office to influence or accept aid of a foreign state
seeking to encourage our domestic election?
Mr. Dickerson. I would think that would be an inappropriate
decision.
Senator Leahy. Thank you. I mention that only because of
President Trump's statement during an ABC News interview in
2019 when he said there is nothing wrong with taking
information from a foreign government on a political opponent.
I must admit that a number of my Republican colleagues were
pretty shocked at that.
I worry because some Republican Senators who have echoed
the President's unsubstantiated claims about voter fraud. Some
have claimed that Philadelphia's ballot counting process--
political--others with their claims are brought about when
Republican Secretaries of State have said everything was fair.
They face death threats because of that. They are saying
because he is on a path to victory. If so, what is that path?
Mr. Dickerson, do you see a path to victory for the President?
Mr. Dickerson. I am not aware of one, but I have not looked
at these cases in any detail.
Senator Leahy. Anybody else see one?
Mr. Cooksey. Senator, as Mr. Dickerson said, I am aware of
ongoing litigation about the election, and I haven't followed
it in great detail and I am not in a position to comment on the
merits of it.
Senator Leahy. You are aware that an awful lot of the
litigation has been withdrawn or tossed out by the courts?
Mr. Cooksey. I have seen news articles to that effect.
Senator Leahy. I am a lawyer. I watch it very, very
carefully. I have seen that I--the only reason I even raise
these questions in a time of COVID the fact that it is taking
so long to set up the process we have when we have a new
President coming in. It is damaging to the country, is damaging
to our security, is damaging to the health of our people. If we
suddenly, as a new President is being inaugurated, we suddenly
have an attack from one of our adversaries overseas, Lord help
us all.
The Presidents in the past, whether they have lost or won,
they have always gone with that, have helped the new President
coming in. I am simply stating this as the longest-serving
Senator. I have never seen this happen with either Republicans
or Democrats. We should be preparing, especially at a time of
COVID and a time of extreme threats that the Chairman is aware
of some of it from his position in other committees, as am I.
We should be preparing for the transition.
Mr. Chairman, I appreciate you setting this hearing. I know
we have a vote that started on the floor.
Chairman Blunt. We do. We do. Thank you, Senator Leahy.
Senator Leahy. You know where my office so I will be at the
vote very quickly.
Chairman Blunt. Exactly. Your office looks great on the
camera here today. Thank you, Senator Leahy. Senator Cortez
Masto.
Senator Cortez Masto. Thank you. Thank you, Chairman and
Ranking Member. Thank you to all three of you and for your
willingness to serve on the Commission. Let me followup with
Senator Leahy's line of questioning. My question to all three
of you is, do you think that the FEC has a role to play in
limiting foreign interference in federal elections? If the
answer is yes, what is that role? Mr. Cooksey, let me start
with you.
Mr. Cooksey. Thank you for that question, Senator. It
raises a very important issue and I also share a concern about
foreign interference in the elections. Yes, the FEC does have a
role in prohibiting foreign interference. The prohibition on
foreign national contributions is longstanding in law and has
been upheld by the courts. It applies across a wide swath of
political contributions. If I am confirmed, I am committed to
enforcing that, just as it has been a priority for the
Commission over recent years.
Senator Cortez Masto. Thank you. Mr. Dickerson.
Mr. Dickerson. I entirely agree. I think the foreign
contribution and expenditure prohibition has been an area of
bipartisan priority at the Commission. I would plan to join
that tradition.
Senator Cortez Masto.Thank you. Ms. Broussard.
Ms. Broussard. Thank you. I cannot--I have no disagreement
from my fellow nominees. The statute requires that foreign
nationals are prohibited from making contributions or
expenditures in our elections, are in connection with our state
and local, state, and federal elections. I agree with that. I
would look forward to, if confirmed, working with fellow
Commissioners to enforce this.
Senator Cortez Masto. Thank you. I know, looking at the
Federal Election Campaign Act, there is really not a lot of
qualifications for Commissioners that we have to look at other
than that the Commissioner shall be chosen on the basis of
their experience, integrity, impartiality, and good judgment. I
think many of the questioning you are seeing here really goes
to the impartiality piece of it.
I appreciate the answers, particularly, Mr. Dickerson, that
you gave to Senator Hyde-Smith on recusal and the fact that
perception also has an impact and that should be considered
when you are looking to recuse. But it is a Commissioner's
decision to recuse or not to recuse at the end of the day.
Let me ask you this, Mr. Dickerson, because over the past
several years, you have advocated against the DISCLOSE Act and
just about every effort by Congress and the FEC to strengthen
transparency. If you are confirmed as Commissioner, how can I
be assured that you are going to be impartial when it comes to
the issues of transparency and will make the decision to recuse
yourself if appropriate?
Mr. Dickerson. I am very grateful for the question,
Senator. I would analogize to what happens when an advocate or
a practicing attorney is nominated for the judiciary, as we do
often at the Commission, sit in a quasi-judicial capacity,
which is why the perception matters so much. You know, I--the
simple answer is that I will take an oath to the Constitution
if confirmed to this position.
As I often remind people, the First Amendment is only one
part of the Constitution and I have been emphasizing that
aspect of it in my practice for the last decade. But I also
recognize that the role of an independent Commission, as a
creature of statute, bound by Congress's judgment is a very
different one from that of an advocate in the nonprofit space.
My commitment to you, quite simply, Senator, is that I
would take that oath seriously and recognize the very different
role required by a nonpartisan law enforcement role as opposed
to representing clients or speaking in public as an advocate.
Senator Cortez Masto. Thank you. Do you think it is
appropriate for an FEC Commissioner to be vocal on Twitter or
media interviews supporting a particular candidate over
another?
Mr. Dickerson. I worry about it a great deal. I think it
does make--I think there has been unanimity among my fellow
nominees and I that we would like to be working toward
unanimity and compromise on the Commission. I suspect that
extracurricular advocacy makes that harder inside the building.
I can't speak for anyone else who might be nominated or
confirmed. I would plan to avoid that sort of outside advocacy.
Senator Cortez Masto. Mr. Cooksey, same question to you.
Mr. Cooksey. Thank you, Senator. I agree with what Mr.
Dickerson said in that if I am lucky enough to be confirmed, my
focus will be on the administration and enforcement of campaign
finance law, not on outside political activity or advocacy.
Senator Cortez Masto. Thank you. I notice my time is up.
The rest of my questions, I will submit for the record. Thank
you all again. Congratulations on your nominations.
Chairman Blunt. Thank you, Senator Cortez Masto. We are
voting. Let me have a couple of questions and a couple of
comments. One is on all of the suggestions of your public view
of elections generally. There are First Amendment rights. You
do know more about elections and think more about elections
than most people. But I don't think it is the job of the
Federal Election Assistance Commission to try to enforce the
campaign finance law. I don't think it is the job of the
Department of Homeland Security to give opinions on how they
think the campaign finance law should be enforced. My thought
on this is, while there may be rulemaking authorities and other
authorities that you have in the campaign finance law area, I
think it is unreasonable to expect these agencies to constantly
cross lines and decide, well, I know a lot about elections
because I am on the Election Assistance Commission. I think I
am going to start making determinations about how campaign
finance law is being enforced. I think generally you all three
wound up in that space where you have important
responsibilities, the integrity of the election system is
important, but your role is pretty clearly defined.
Ms. Broussard made a comment I very much agreed with that
if the Congress passes a law, you are going to enforce that
law. There may be some rulemaking authority that is on the
edges of whether Congress has passed a law or not, but
understanding your job and how you do your job is critically
important because nobody else is going to do your job. You
spend all your time doing somebody else's job, nobody is doing
your job, which is critical.
On--what standard, if you have had a chance to think about
this yet, and I know Ms. Broussard has, what standard must be
met before the Commission offers an investigation? Let's just
go in alphabetical order here, Broussard, Cooksey, Dickerson.
What standard do you think needs to be met before the
Commission opens an investigation?
Ms. Broussard. Thank you, Senator. There has to be reason
to believe that a violation has occurred or could occur, and
the reason to believe is based upon sufficient evidence
available. If, as was already mentioned by one of the nominees,
it is not a quantified percentage, but that is the standard
that is based in the statute and is also the regulations.
Chairman Blunt. Mr. Cooksey.
Mr. Cooksey. Yes, Senator, Ms. Broussard is correct. Reason
to believe is the standard. I would describe reason to believe
as the presence of credible evidence that a violation of the
law has occurred--one of the campaign finance laws that the FEC
administers.
Mr. Dickerson. Senator, I find myself in the pleasant
position and entirely agreeing with my fellow nominees.
Chairman Blunt. Well, let me ask one more question. We will
see if you agree with that one. The FEC is the subject of a
great deal of litigation. The adversarial process really
requires somebody engaged to defend the position the Commission
has taken or nobody engages. What is your view of that? All
three lawyers, all three capable attorneys. What do you think
should be the FEC view of litigation challenging a newly
arrived at position taken by the FEC? We can reverse
alphabetical order. Let's go Dickerson, Cooksey, and Broussard.
Mr. Dickerson. Thank you for the question. I have thought
about this a great deal as a member of the private Bar who
deals with the FEC. I don't think that the Commission does
judges or courts any favors when important questions of
constitutional or statutory law are decided on default
judgments. I don't think that provides any clarity the law or
any sufficient due process for the people held in front of the
Commission. There may be cases where I would not vote to
enforce or to appeal or to otherwise go to court, but sitting
here right now and in my experience, I cannot think of any.
Mr. Cooksey. Senator, my approach to this question is that
Congress created the Commission as the administrator of the
federal campaign finance law, not the courts and not private
litigants. I have a strong belief that the rulings and the
decisions of the FEC as a general matter should be defended in
court.
Chairman Blunt. Ms. Broussard.
Ms. Broussard. Thank you. I believe that we have to look at
each case, the particular facts, the law and with discussion
with the Office of General Counsel to make that decision. But
as Mr. Dickerson mentioned, I can agree with his perspective
and said there may be some cases that it may be a value to
consider with my peers on the Commission whether there should
be a defense. But I am open to considering each matter before
me and make the decision at that time. Thank you.
Chairman Blunt. Well, I thank all of you for joining us
today. The record will be open until noon on Friday, November
the 20th.
I know Ms. Broussard, in the point when we had a slight
disengagement, Senator Cruz had a question that he had hoped
you all three would answer, that you didn't get a chance to
answer. There will probably be more questions to be filed. I am
hopeful that we can move all three of these nominations this
year and restore the Commission to the six member status.
I would point out for the observations that I would like to
do this two at a time, one Democrat, one Republican. There have
been two vacancies on the court for over, or two terms on the
Commission for a decade or so now, one by a Democrat, one by an
Independent that generally votes with that side of the
Commission, that no nominee has ever been presented to this
committee.
I would love to have nominees for that and we would quickly
move on those nominees, even if they both come at the same
time, as long as there is otherwise a full Commission. The
committee is adjourned.
[Whereupon, at 11:22 a.m., the hearing was adjourned.]
APPENDIX MATERIAL SUBMITTED
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