[Senate Hearing 117-237]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 117-237

                 NOMINATION HEARING OF DANA LINDENBAUM
                      TO BE A COMMISSIONER ON THE
                      FEDERAL ELECTION COMMISSION

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                                 HEARING

                               BEFORE THE

                 COMMITTEE ON RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 6, 2022

                               __________

    Printed for the use of the Committee on Rules and Administration
    

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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                 COMMITTEE ON RULES AND ADMINISTRATION

                             SECOND SESSION

                  AMY KLOBUCHAR, Minnesota, Chairwoman

DIANNE FEINSTEIN, California         ROY BLUNT, Missouri
CHARLES E. SCHUMER, New York         MITCH McCONNELL, Kentucky
MARK R. WARNER, Virginia             RICHARD SHELBY, Alabama
PATRICK J. LEAHY, Vermont            TED CRUZ, Texas
ANGUS S. KING, JR., Maine            SHELLEY MOORE CAPITO, West 
JEFF MERKLEY, Oregon                     Virginia
ALEX PADILLA, California             ROGER WICKER, Mississippi
JON OSSOFF, Georgia                  DEB FISCHER, Nebraska
                                     CINDY HYDE-SMITH, Mississippi
                                     BILL HAGERTY, Tennessee

                    Elizabeth Peluso, Staff Director
             Rachelle Schroeder, Republican Staff Director
                         
                         
                         C  O  N  T  E  N  T  S

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                                                                  Pages

                         Opening Statement of:

Hon. Amy Klobuchar, Chairwoman, a United States Senator from the 
  State of Minnesota.............................................     1
Hon. Roy Blunt, a United States Senator from the State of 
  Missouri.......................................................     3
Dara Lindenbaum, Nominee to be a Member of the Federal Election 
  Commission.....................................................     4

                         Prepared Statement of:

Dara Lindenbaum, Nominee to be a Member of the Federal Election 
  Commission.....................................................    18

                  Materials Submitted for the Record:

Recommendation Letter from various Organizations to confirm Dara 
  Lindenbaum as a Commissioner on the Federal Election Commission    20

                  Questions Submitted for the Record:

Hon. Amy Klobuchar, Chairwoman, a United States Senator from the 
  State of Minnesota to Dara Lindenbaum, Nominee to be a Member 
  of the Federal Election Commission.............................    24
Hon. Roy Blunt, a United States Senator from the State of 
  Missouri to Dara Lindenbaum, Nominee to be a Member of the 
  Federal Election Commission....................................    25
Hon. Ted, Cruz, a United States Senator from the State of Texas 
  to Dara Lindenbaum, Nominee to be a Member of the Federal 
  Election Commission............................................    26

 
                         NOMINATION HEARING OF
                            DANA LINDENBAUM
                      TO BE A COMMISSIONER ON THE
                      FEDERAL ELECTION COMMISSION

                              ----------                              


                        WEDNESDAY, APRIL 6, 2022

                               United States Senate
                      Committee on Rules and Administration
                                                     Washington, DC
    The Committee met, pursuant to notice, at 3:17 p.m., in 
Room 301, Russell Senate Office Building, Hon. Amy Klobuchar, 
Chairwoman of the Committee, presiding.
    Present: Senators Klobuchar, Blunt, King, Ossoff, Cruz, 
Fischer, Hyde-Smith, and Hagerty.

  OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, CHAIRWOMAN, A 
       UNITED STATES SENATOR FROM THE STATE OF MINNESOTA

    Chairwoman Klobuchar. Good afternoon. I call to order this 
hearing of the Committee on the Nomination of Dara Lindenbaum 
to be a Commissioner on the Federal Election Commission, the 
independent agency responsible for enforcing the Federal 
campaign finance laws. This Committee's last hearing on FEC 
nominees in November 2020 included two Republicans and one 
Democrat who were later confirmed by the Senate to restore a 
quorum to the Commission. We handled it well in the Committee 
and it got done. Just would like to point that out. That was my 
paraphrasing of the situation.
    Now we are considering Ms. Lindenbaum's nomination to fill 
the seat being vacated by Commissioner Walther. The FEC is 
charged with a critical role in ensuring accountability in our 
system of government, and it was established by Congress in the 
wake of the Watergate scandal to restore the public's faith in 
our electoral processes, to make it clear that in America, 
politicians must play by the rules so that the votes of the 
people decide our elections.
    Now, 47 years later, the work of the FEC is as important as 
ever. The 2020 election cycle was the most expensive in 
history. Total spending was over $14 billion, and $8 billion 
was spent on political advertisements alone. Too many voters 
feel like their voices are being drowned out. At the same time, 
the Commission is facing the challenges that arise given 
rapidly evolving technologies and the ongoing threat of foreign 
interference in our elections. It is a big and important job. 
But Dara Lindenbaum is an excellent nominee who is more than 
capable of taking it on.
    Ms. Lindenbaum has extensive experience in election and 
campaign finance law with years of experience working for a 
civil rights nonprofit and in the private sector. She also has 
firsthand experience at the FEC, where she worked as a law 
clerk early in her legal career, and her work representing 
clients before the FEC would enable her to bring an important 
perspective to the Commission. She is both well-qualified and 
well-respected.
    Last week, we received a letter from 30 of the Nation's top 
campaign finance lawyers. The letter enthusiastically, that is 
their words not mine, recommends Ms. Lindenbaum's confirmation, 
and it is signed by Republicans, Democrats, and Independents, 
including Lee Goodman, a former Republican Chairman of the FEC, 
and Karl Sandstrom, a former Democratic Commissioner. In the 
letter, these attorneys praise her as a thoughtful and 
conscientious advocate and a genial and inclusive colleague.
    I agree with their conclusion that she will be an excellent 
addition to the Commission. Without objection, I will submit 
this letter to the record. I will submit it. No objection 
because he is so genial.
    [The information was submitted for the record.]
    Chairwoman Klobuchar. Ms. Lindenbaum learned about 
Republicans and Democrats getting along at a young age from her 
own family. Growing up, her parents supported different 
political parties. Every Election Day, she would take two trips 
to the polling place, one with her mom and one with her dad. 
Her parents, Sandy and Lesley, are both with us here along with 
her husband, Jonathan. But I understand that for some reason 
you did not think, Dara, that it would be a good idea to bring 
your three year old twins here.
    Her parents' example will serve her well on the Commission, 
which has suffered from partisan divides and stalemate. As we 
know, no more than three Commissioners can be from the same 
political party, but it requires four votes to take most 
actions. When votes consistently fall along party lines, very 
little gets done. It sounds a little like this place with the 
tie.
    For example, the FEC has not enacted any major disclosure 
rules or internet regulations in over a decade. Hundreds of 
enforcement cases have been left unresolved. This is not fair 
to the candidates of any party or to the public. While I 
continue to urge my colleagues to pass legislation to address 
some of these issues, it is also up to the Commissioners to 
figure out ways to work across party lines and find bipartisan 
agreement.
    I know that Ms. Lindenbaum is up to the task and look 
forward to hearing more today about how she will work with 
fellow Commissioners on the Federal Election Commission. As 
everyone on this Committee knows, we can never take our 
democracy for granted, and elections--and our election laws 
that enforce them--is a big part of that.
    We certainly feel that, as our hearts and our minds today 
are with the people of Ukraine who are literally putting their 
lives on the line to protect their democracy. Our job is not 
only to help them, but also to support our democracy here at 
home by making sure that we have an agency that fulfills its 
mission to protect the integrity of the federal campaign 
finance process, and in so doing, to keep our democracy strong.
    I am confident that you are up to this challenge, and I 
look forward to hearing from you today. I will now turn it over 
to Senator Blunt for his opening statement.

   OPENING STATEMENT OF HONORABLE ROY BLUNT, A UNITED STATES 
               SENATOR FROM THE STATE OF MISSOURI

    Senator Blunt. Well, good afternoon and thank you, Chair 
Klobuchar, for calling this hearing together. I agree with you, 
it is an important hearing, and I want to thank my colleagues 
for joining us today. Some are here in person, others I think 
virtually. I also want to welcome our nominee to today's 
hearing. Dara Lindenbaum is the president's nominee to be a 
member of the Federal Elections Commission.
    I am glad to see her family and friends here today, as well 
as others, including those three year old twins who are 
watching virtually and welcome them as well. They may very well 
remember more of this when you remind them in the future than 
you think they might today.
    In late 2020, as Chairwoman mentioned, this Committee 
gathered to confirm three nominees to restore a quorum to the 
FEC. I was Chairman at the time and gave my commitment that we 
would get to that fourth nominee soon, and more importantly, a 
full slate of nominees really for the first time since February 
2017 at the time. But this will be the first time in years that 
a majority of those serving on the Commission were not on hold-
over status.
    The nominee presents another opportunity to do that. In 
fact, the person she will replace, the Commissioner she will 
replace has been on hold-over status for nearly 13 years. It is 
no wonder that people look at the FEC and wonder why it does 
not get more attention, and we have given it that attention, I 
hope, and I think that attention with good nominees.
    Returning the FEC to a full slate of Commissioners has 
already allowed the Commission to continue its important work 
of holding hearings and making new rules, issuing advisory 
opinions, conducting investigations, and approving enforcement 
actions. Now, with a full slate, the agency has been able to do 
that, but it needs to work through the backlog of work that has 
piled up during the absence of a quorum. The FEC does not stop 
with this appointment, certainly. When a single Commissioner 
departs the agency, there are still Commissioners there to do 
the job.
    The Federal Election Commission plays a vital role for 
campaign finance committees. As a former Secretary of State, I 
worked with the FEC on a regular basis, and since that time I 
have run in many Federal elections and I know how important a 
fully functioning FEC is to Federal candidates who need to 
avail themselves of the FEC's guidance, who need advisory 
opinions. I also know it is important to the stability of the 
agency and the regulated community to have a full set of 
Commissioners.
    I look forward to hearing about our nominee's campaign 
finance experience, her views on the FEC's operations and 
priorities, and how she would approach the role of 
Commissioner. Again, thank you, Ms. Lindenbaum, for being 
willing to serve and being with us here today, and I appreciate 
the chance we had to talk just a few days ago.
    Chairwoman Klobuchar. Very good. Thank you so much, Senator 
Blunt. I will now introduce our witness and our nominee, Ms. 
Dara Lindenbaum, who is, of course, the nominee to be a 
Commissioner on the Federal Election Commission.
    Ms. Lindenbaum is a partner at Sandler Reiff Lamb 
Rosenstein & Birkenstock, where she has worked since 2013. 
Previously, she worked at the Lawyers Committee for Civil 
Rights Under Law, where she focused on election law and voting 
rights. She holds a bachelor's degree from Northeastern 
University and a law degree from George Washington University.
    I will now swear in our nominee. Want to stand? Ms. 
Lindenbaum, if you would raise your right hand. Do you swear 
that the testimony you will give before the Committee shall be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Ms. Lindenbaum. Yes.
    Chairwoman Klobuchar. Thank you. You can be seated, and you 
are now recognized for five minutes.

OPENING STATEMENT OF DARA LINDENBAUM, NOMINEE TO BE A MEMBER OF 
                THE FEDERAL ELECTION COMMISSION

    Ms. Lindenbaum. Chairwoman Klobuchar, Ranking Member Blunt, 
and Members of the Committee, thank you for the opportunity to 
appear before you today as President Biden's nominee for the 
position of Commissioner on the Federal Election Commission. It 
is an honor to be here.
    I would like to take a moment and introduce my family here 
with me today: my husband Jonathan, my parents Lesley and 
Sandy, aunt Marcy and uncle Randy, my quasi-uncle John, my 
brother David, my rock Freeman, and last but certainly not 
least, my best friend Amy.
    Here with me in spirit are my grandmother Joan Sircus, who 
is watching with her entire temple in Florida, Sam Mars, who 
would have loved to be here to support me today, and as you 
said, my three year old daughters, Isabel and Zoey, who are 
probably not watching this hearing, but maybe one day we will 
show it to them.
    I am eternally grateful to them, to my family and friends 
watching from home, my mentors and colleagues at Sandler Reiff 
Lamb Rosenstein & Birkenstock, and my mentor and Professor 
Spencer Overton, and everyone who has helped me get to this 
moment. I am also honored to have the support from bipartisan 
colleagues with whom I have worked throughout my career. I 
would not be here today without all of their encouragement.
    As Senator Klobuchar said, I grew up with parents on both 
sides of the aisle. While that meant we had some spirited 
debates around the dinner table, the one thing they have always 
agreed on is the importance of voting. As a child, I got to 
take two trips to the polls on election days, one with mom and 
one with dad, and my parents instilled in me and my brother 
this core value of active participation in our democracy, and I 
have dedicated my career to the furtherance of this country's 
promise of civic engagement.
    If I am so fortunate as to be confirmed to the FEC, I will 
stand on this foundational belief, bringing with me my 
experience as a practitioner for over a decade, working with 
candidates, campaigns, political action committees, vendors, 
donors, and voters. Throughout my work in local, state, and 
federal elections, I bring a unique understanding of the 
complex systems and policies, candidates, and campaigns put in 
place to be in compliance with the law, the obstacles that are 
faced by all in the regulated community, and the importance of 
clear, transparent rules.
    I take the core mission of the FEC to heart, to protect the 
integrity of the Federal campaign finance process by providing 
transparency and fairly enforcing and administering Federal 
campaign finance laws. As Senator Blunt has said, we need the 
FEC to work so that candidates can run in a way that allows the 
discourse of the campaign to occur, while protecting the system 
from those operating outside of the law.
    If confirmed, I intend to be a consensus builder. I am 
honored to have the support from practitioners on both sides of 
the aisle. Both as a lawyer as well as a mother of three year 
old twins for whom I have to adjudicate disputes, I know that 
consensus will not come easily, but we must make every effort 
that we can. The consideration of the facts and the law in 
front of me will be my guideposts as I seek to provide clarity 
to the regulated community, increase transparency, and 
collaborate with my fellow Commissioners to further the 
important mission of the FEC.
    It will be my duty to instill public confidence in the 
integrity of our system in a bipartisan manner, as directed by 
Congress. You have my commitment that, if confirmed, I will 
treat every party with business before the Commission fairly, 
objectively, and without prejudice or bias. It would be an 
honor to serve as Commissioner on the Federal Election 
Commission, and I look forward to taking your questions.
    [The prepared statement of Ms. Lindenbaum was submitted for 
the record.]
    Chairwoman Klobuchar. Well, thank you so much, Ms. 
Lindenbaum. We of course, greet your grandma's temple from 
Florida. Right, Senator Blunt?
    Senator Blunt. Absolutely.
    Chairwoman Klobuchar. Yes, exactly. We are very excited 
they are watching. You know, we do not get a lot of people 
watching this all the time, so we are pretty excited. Now, 
first of all, you have spent your career in election and 
campaign finance law, including appearing before the FEC as an 
attorney, working there as a law clerk. Why do you want to 
serve on the FEC at this point in your career?
    Ms. Lindenbaum. It has been my life's work to bolster 
confidence in the election system and make sure that those 
eligible to participate can. A functioning FEC instills public 
confidence in the integrity of our system and allows 
candidates, campaigns, and other political actors to speak. It 
protects the system from those who operate outside of the law 
and allows voters to obtain the information they need to make 
informed decisions at the voting booth.
    If confirmed, my experience as a practitioner working 
across the regulated community will further the FEC's critical 
mission to protect the integrity of the Federal campaign 
finance process by providing transparency and fairly enforcing 
and administering the laws.
    Chairwoman Klobuchar. Thank you. Like some of our other 
nominees, including Republican nominees in the past, as an 
attorney you have represented many clients, and I understand 
you have entered into an agreement with the FEC's designated 
ethics officials on how to handle potential conflicts of 
interest, including through recusal in some cases. Will you 
commit to following the terms of that agreement and the advice 
of the agency's ethics officials if you are confirmed?
    Ms. Lindenbaum. Yes.
    Chairwoman Klobuchar. Okay, thank you. The FEC, as we have 
noted, has an even number of Commissioners limited to no more 
than three from a single political party, and that frequently 
leads to a stalemate that can hamstring the Commission from 
initiating investigations, approving rulemakings, and issuing 
advisory opinions--some of the things we have talked about here 
with rules about the new dawn of the internet, which was many 
decades ago. Just talk to me about how you will commit to 
working with your colleagues in an effort to find consensus to 
ensure that critical rulemakings and enforcement proceedings 
can move forward regardless of what party the candidate whose 
case may be before you is from.
    Ms. Lindenbaum. Thank you for that question. As you said, 
the only way for the FEC to function is for the Commissioners 
to work together across the aisle to find consensus. I start by 
coming with a position of respect. I am proud to have the 
bipartisan support of 30 of my colleagues in the political law 
community, some of whom I have even opposed in court and in 
recounts.
    That position of respect is one I try to bring to 
everything that I do. If confirmed, my general process will be 
to figure out where we can find common ground, what our 
sticking points are, and where there is actual room for 
movement.
    Chairwoman Klobuchar. Very good. One area where we have 
seen bipartisan consensus coming out of the Commission is on 
the issue of fraudulent fundraising practices. In recent years, 
we have seen the emerging threats posed by scam PACs--groups 
pretending to fundraise for candidates and then they pocket the 
money.
    I have heard many of my colleagues on both sides of the 
aisle talk about it. Senator King and I are working on 
legislation to address this issue. Do you agree that the 
threats posed by these scam PACs are serious and that action 
should be taken?
    Ms. Lindenbaum. Yes, absolutely.
    Chairwoman Klobuchar. Okay. Following the 2020 election, we 
have seen a dramatic increase in threats against both election 
officials and Members of Congress. Last year, Capitol Police 
responded to over 9,000 threats against Members, nearly double 
the number of threats faced by Members of Congress just three 
years ago.
    In March 2021, the FEC issued guidance clarifying that 
Members can use campaign funds for personal security. Can you 
speak to the importance of this guidance in light of the rise 
in threats that we are seeing?
    Ms. Lindenbaum. Yes, and thank you for this. This is one 
that I really do care about, especially working with 
candidates, and that is that candidates need to be protected. 
It is an unfortunate part of what is happening right now that 
there are threats and legitimate reasons to believe that 
somebody, be it a candidate or staff or the campaign itself, 
may have threats.
    I think it is important that campaigns and candidates be 
able to use their campaign funds, but also make sure that those 
that do not have their own personal funds have the ability to 
find another source to actually pay for their security.
    Chairwoman Klobuchar. Alright. Thank you. We are continuing 
to look in more ways for security payments, but that is for 
another day. Senator Blunt.
    Senator Blunt. Thank you, Chair. Ms. Lindenbaum, you have 
had a lot of experience before the FEC. Are there times when 
you have been particularly frustrated, or from your personal 
experience as a person that has dealt with the FEC a lot, what 
kind of things do you think the FEC could do that would be more 
helpful to campaigns and candidates and the people that 
represent campaigns and candidates?
    Ms. Lindenbaum. Sure. Thank you for that. One of the 
frustrations that I think we face as practitioners and that 
candidates face is time. A complaint is filed, and it could 
take years to be adjudicated. That complaint is hanging over 
that candidate's head, that campaign's head. In the event of a 
candidate who is no longer running, they cannot close their 
committee until after the case is closed.
    I think that is kind of a broader matter, and one the 
Commission is really working on, especially since it has found 
a new quorum, on speeding that along. But there is also 
practical things, and I think that being a resource for those 
in the regulated community, having a way to answer questions, 
which the FEC is starting to do, are other ways that you can 
really improve the process, make it easier for candidates, 
especially candidates that may not have the funds to spend on 
lawyers to work through the process.
    Senator Blunt. On the whole idea of the files and the time 
it takes to process this, and I think we have both mentioned 
and I know I mentioned in my comments the importance of 
clearing through this backlog, but I have heard recently that 
the FEC is not always voting now to close files when they have 
reached a final determination.
    It seems to me that that is--it is unnecessary to have a 
file out there that is still available to the public if, or 
other attorneys, if the FEC has made a final decision on that. 
What is your view on whether these files that have been decided 
on, how should they be--how should they be handled?
    Ms. Lindenbaum. I believe they should be closed.
    Senator Blunt. Okay, good. You will commit to advocating 
for that?
    Ms. Lindenbaum. Yes.
    Senator Blunt. As a member of the Commission? On--Senator 
Klobuchar mentioned your work and your agreement to step back 
if you have had--if you have done legal work for campaigns that 
have a case--what is, give me the broad outlines of that for 
both the people you have represented and if there are any 
outlines for others that your firm has represented. Just share 
that with us, would you?
    Ms. Lindenbaum. Sure. Under that agreement, I would have to 
recuse myself for a period of two years from any candidate that 
I have done work with or, any client. Two years for any matter 
that involves one of my--that involves Sandler Reiff.
    Senator Blunt. Okay. Then what if you had a question after 
that? How would you resolve that?
    Ms. Lindenbaum. If I have a question after that, I would go 
and bring that question to the Ethics Council and ask for their 
opinion, and I would follow that opinion.
    Senator Blunt. Good. As long as--where your personal 
opinions are concerned, in the past we have heard concerns 
about Commissioners advocating for certain legislation or 
commenting on potential investigations appearing to establish 
their own view of this before they deal with the case. What is 
your view of your role as a legislative advocate or making 
comments on things that might appear before the Commission?
    Ms. Lindenbaum. If I am confirmed, I certainly am aware 
that the role is to be a regulator, not a lawmaker. I would not 
intend to go outside those bounds. I cannot speak to other 
Commissioners, but what I can say is what I would do, which is 
stick to enforcing the law and regulating the law as written by 
Congress, not as I would want it to be. In addition, I would be 
working with my fellow Commissioners on the yearly unanimous 
recommendations that they make to Congress. I would see that as 
the extent to my advocacy.
    Senator Blunt. How important do you think unanimity is at 
the FEC?
    Ms. Lindenbaum. I think unanimity would be fantastic as 
often as we can find it. There are many issues that they do 
find full agreement on.
    Senator Blunt. What about your approach to implementing 
legislation that you do not agree with, your past support for 
changing certain campaign finance policies or other things, how 
would you deal with those kinds of issues?
    Ms. Lindenbaum. Well, I certainly respect the different 
role between the role as a private lawyer versus the role as a 
Commissioner, should I be confirmed. My job, if confirmed, 
would be to enforce and regulate the law as written by Congress 
and interpreted by the courts, not what I want it to be.
    Senator Blunt. Thank you. Thank you, Chair.
    Chairwoman Klobuchar. Thank you very much, Senator Blunt. 
Senator King.
    Senator King. Thank you, Madam Chair. To follow-up on 
Senator Blunt's questions, there is no question about your past 
affiliation with the Democratic Party or Democratic candidates. 
Some would argue that this Commission is set up to be 
deadlocked. The only way to avoid that is the personal 
interaction among the Commissioners.
    Do you have any thoughts about how you as a new individual 
joining the Commission can try to help break the deadlock in 
terms--by working to find compromise, to find consensus 
solutions to some of these issues? Because if the FEC is 
continued--if the FEC is continually deadlocked, it cannot 
perform its function.
    Ms. Lindenbaum. Yes, Senator, thanks. It is something that 
I have thought quite a bit about, it is one of the most 
important things for me coming into the Commission, to see what 
I can do to be a consensus builder. I intend to come in with a 
position of respect for my fellow Commissioners on both sides 
of the aisle. I also have a letter of support from 30 of my 
fellow practitioners from both sides of the aisle that can--
that speaks to my ability to work well with others and to 
respect each other's opinion.
    I think that letter and that support from my colleagues in 
this community gives me a baseline and a level of understanding 
in good faith to go into these conversations so that my fellow 
Commissioners know that I am on, you know, the same page and we 
all are trying to further the mission of the agency, and to 
provide transparency to the public, and provide clear rules to 
those in the regulated community.
    Again, the heart of it is coming to a position of respect. 
Finding out what areas we can all agree on and what areas there 
is some movement on.
    Senator King. Do you consider yourself a Democratic 
Commissioner or a Commissioner?
    Ms. Lindenbaum. I would be filling a Democratic seat, but 
my--I believe that I am coming in without any bias. Everyone in 
front of me will have a fair hearing, no matter what party they 
are from or what their policy positions are.
    Senator King. Thank you. Thank you, Madam Chairwoman.
    Chairwoman Klobuchar. Very good. Senator King, the 
independent Member of our Committee.
    Senator King. You managed not to use the word independent, 
but that is okay.
    [Laughter.]
    Chairwoman Klobuchar. It is a gauntlet, and you are still 
okay by the way.
    Ms. Lindenbaum. Thank you.
    Chairwoman Klobuchar. Yes. Okay, Senator Hyde-Smith.
    Senator Hyde-Smith. Thank you, Madam Chairwoman. Thank you 
for being here today, and it is lovely that you have your 
family with you to support you. This is a really important day. 
I so much appreciated your comments and your testimony about 
your desire to be a consensus builder on the Federal Elections 
Commission, if you are confirmed, and I appreciated hearing 
your commitment to instill public confidence in the integrity 
of our system in a bipartisan manner. Why is it especially 
important that FEC in particular operate by consensus and in a 
bipartisan manner?
    Ms. Lindenbaum. I think that the way I would address that 
is that there are two major reasons. One is because of the way 
that Congress designed the Commission, the only way for it to 
work and take action is for it to come to bipartisan agreement.
    But then on a different level, I think for candidates and 
others in the political community, the only way you can 
campaign and the only way you can reach the public is knowing 
that you are operating under the same rules as the others that 
you are competing against. The way to do that is to know that 
those regulating your campaigns are going to do so in a 
bipartisan and unbiased manner.
    Senator Hyde-Smith. Thank you for that answer. Part of 
ensuring that the FEC is fair and without bias is ensuring that 
the Commissioners do not have a conflict of interest in matters 
that come before the Commission.
    As I understand it, you are currently the General Counsel 
for Stacey Abrams' campaign for Governor in Georgia. If a 
matter came before the Commission involving her particular 
campaign or any other campaign you have been involved in, would 
you recuse yourself from those issues? Why or why not?
    Ms. Lindenbaum. Yes, I would follow the ethics agreement 
that requires that I recuse myself for any matter involving a 
current client or anything involving my firm for a period of 
two years. If after that two year period there is some reason 
to believe that there could be any kind of conflict, I would go 
to the Ethics Council and take any advice that--or follow their 
opinion.
    Senator Hyde-Smith. Thank you. Thank you, Madam Chairwoman.
    Chairwoman Klobuchar. Thank you very much. Next online with 
us is Senator Ossoff. Oh, he is having a technical issue, so I 
will filibuster for a second, and--right, go ahead, Roy.
    Senator Blunt. Just a couple of more questions. The FEC is 
subject to a great deal of litigation. You know, part of that 
is just to prove your outrage that the FEC voted against you--
there are other litigation as well. But recently, there have 
been instances where the agency has defaulted in litigation 
against it. How--what would be your view of defending the 
agency's decisions once they have been made?
    Ms. Lindenbaum. I think it is important for an agency to 
defend itself in court. It does a number of different things, 
including building a record.
    Senator Blunt. Do you think there would--are there 
circumstances that come to mind where you would think that it 
would be appropriate not to litigate and just default?
    Ms. Lindenbaum. Nothing comes to mind.
    Senator Blunt. You believe the Commissioners' votes on 
whether or not to defend the FEC in court should be made 
public?
    Ms. Lindenbaum. I do.
    Senator Blunt. Thank you.
    Chairwoman Klobuchar. I have got one. Let me know when 
Senator Ossoff is on. As you know, when reviewing an FEC 
complaint, four Commissioners need to find a reason to believe 
that there has been a campaign finance violation in order for 
the complaint to proceed.
    The consistent pattern of FEC votes that deadlock along 
party lines has resulted in the Commission often being unable 
to fulfill its enforcement role and enforce the law. If 
confirmed, how would you approach determining whether there is 
a reason to believe that a campaign finance violation has 
occurred?
    Ms. Lindenbaum. Sure. I would take every case in front of 
me with respect and view the facts and the law in front of me 
before making a decision. To--the reason to believe standard is 
one that has been relatively open to interpretation and 
Commissioners are still working through it.
    But in my opinion, there needs to be a reason to believe 
that a violation occurred based on sufficient evidence in order 
to take on an investigation. It is important that the FEC and 
the Commissioners understand the weight that comes into play if 
an investigation is launched, and we need to take care in 
making those kinds of determinations.
    Chairwoman Klobuchar. Okay, very good. Thank you. A lot 
going on up here, noises in the hallway. I did not mean you, 
Senator Cruz. I know you are here. Senator Ossoff is online and 
then we will hear from Senator Cruz.
    Ms. Lindenbaum. Great.
    Senator Ossoff. Thank you, Chair Klobuchar, Ranking Member 
Blunt. I am sorry I am not there in person. Just between 
meetings here in the office. Thanks for making this option 
available. Ms. Lindenbaum, congratulations on your nomination. 
Thank you for joining us. First question for you, and I am sure 
some of this has been covered, but I want to dig in a little 
bit deeper as to understand your approach to disclosures for 
digital electioneering communications and political 
advertisements, please.
    Ms. Lindenbaum. Sure. You know, campaigns are operating in 
an environment that is ever changing. You, as Congress, are 
doing your best to keep up with those changes and those 
evolutions that we see in every election.
    It is the FEC's job to ensure that they are keeping up with 
those changes, to the extent the Commission has the legal 
authority to do so. It is crucial that we maintain the 
technological flexibility while providing the public with the 
transparency so they can make informed decisions.
    Right now, there is a pending rulemaking that my 
understanding is there may be some agreements among the 
Commissioners that can actually get passed. It has taken a 
number of attempts. But I will be working with my fellow 
Commissioners, if I am confirmed, to try to find consensus and 
to make sure that the law and the regulations that are being 
put forward are ones that are straightforward, clear, and can 
be complied with without making it impossible to take advantage 
of new technologies out there.
    Senator Ossoff. Thank you. Let's discuss how you will 
maintain impartiality as a member of a body whose members are 
often at least publicly deemed to have some partisan 
affiliation. Your obligation will be to apply relevant law and 
rules impartially without regard for personal political 
preferences or partisan affiliation, correct?
    Ms. Lindenbaum. Yes.
    Senator Ossoff. Will you do so?
    Ms. Lindenbaum. Yes.
    Senator Ossoff. How will you ensure that you remain 
substantively impartial and avoid taking any action that would 
damage the public's confidence in your impartiality?
    Ms. Lindenbaum. My guideposts will be the facts and the law 
in front of me. I will take every case on its own merits and 
without taking into account who the respondent is or what the 
matter involves. I am honored to have the bipartisan support 
from colleagues in the political law community, and who I have 
even opposed in court and who trust and respect, that I will, 
if confirmed, that I will do so in a nonpartizan and unbiased 
manner.
    Senator Ossoff. Thank you. Congratulations again on your 
nomination. Madam Chair, I yield back.
    Chairwoman Klobuchar. Senator Cruz.
    Senator Cruz. Thank you, Madam Chair. Ms. Lindenbaum, 
welcome.
    Ms. Lindenbaum. Thank you.
    Senator Cruz. There have been consistent concerns about 
public confidence in the security of our elections. Do you 
agree that those concerns are legitimate?
    Ms. Lindenbaum. I think many of the concerns are 
legitimate.
    Senator Cruz. Do you think that criticizing an election as 
stolen, or otherwise invalid, undermines the public faith in 
the democratic process?
    Ms. Lindenbaum. Well, I should say first, Senator, that 
these matters, the election security matters are outside the 
purview of the Federal Election Commission, which is solely 
focused on campaign finance issues and not the issues of 
election administration, the machines, or what have you.
    Senator Cruz. Okay, with that caveat, let me ask the 
question again. Do you think that criticizing an election is 
stolen undermines faith in the democratic process?
    Ms. Lindenbaum. I think it can. I think it depends on the 
context involved.
    Senator Cruz. Who won the 2018 Georgia Governor's race?
    Ms. Lindenbaum. Brian Kemp.
    Senator Cruz. Did his opponent, Stacey Abrams, concede the 
2018 gubernatorial election?
    Ms. Lindenbaum. Yes.
    Senator Cruz. When?
    Ms. Lindenbaum. I believe it was nine days after. She gave 
a speech where she acknowledged that Brian Kemp won the 
election and she said that, you know, her assessment was that 
the law currently allowed no further viable remedy. She said 
she could keep the case--the contest going but did not want to 
hold public office if it meant scheming her way into the post. 
During that speech, she said that the election was over, and 
acknowledged that she did not win.
    Senator Cruz. I guess I am a little bit puzzled by that 
answer because you said she conceded nine days after the 
election. But you filed a complaint in Federal court on behalf 
of Stacey Abrams on November 28th, which was 10 days 
afterwards.
    In the complaint, you sought to permanently enjoin the 
Secretary of State and the State Election Board and declare 
Georgia's election process unconstitutional and in violation of 
Federal law. Is that right?
    Ms. Lindenbaum. Well, again, Senator, I do need to say that 
any of these matters fall outside the purview of the Federal 
Election Commission. I would also say that that is not actually 
what the case did. It was not on behalf of Stacey Abrams. It 
was on behalf of Ebenezer Church, which is a historic church in 
Georgia, another--a number of AME churches and Fair Fight 
Action and Care in Action. Stacey Abrams is not an individual 
plaintiff in that case.
    Senator Cruz. Okay, but you were seeking an election 
victory for her. In fact, as part of the complaint, you argued 
that Georgia's electronic voting machines were, ``insecure and 
unreliable.'' Is that correct?
    Ms. Lindenbaum. That was an argument. Then the next year 
and in the 2020 election, the machines were changed. Those 
machines in 2018 were DRE machines with no paper trail. In 
2019, the end of 2019, Georgia purchased new machines and the 
2020 machines were optical scan machines with a paper trail.
    Senator Cruz. The complaint you filed argued that the 
machines in 2018 actually switched votes for Abrams to vote for 
Kemp, is that correct?
    Ms. Lindenbaum. The complaint, I believe, had those 
allegations in it and those allegations were all based on 
affidavits and other stories from voters. The other thing I 
need to say, Senator, and I understand going down this line is, 
that case is in very active litigation. It goes to trial 
actually on Monday. I am very, very much limited in what I can 
say about it, talking about what was or is not in the complaint 
is one thing, but it would not be appropriate for me to go too 
far into this case.
    Senator Cruz. But as an officer of the court, you were 
willing to put your name on a legal pleading alleging that the 
machines used in Georgia in 2018 were switching votes illegally 
from one candidate to another. Is that correct?
    Ms. Lindenbaum. Yes.
    Senator Cruz. The FEC requires a majority to undertake 
substantive action in policymaking, and at present it is 3-3. 
When the FEC is sued, it must vote to defend itself. But the 
Democrats have begun consistently voting against the FEC doing 
its job, resulting in deadlocked votes, no shows in court, and 
default judgments.
    Since 2020, the FEC has defaulted in court nine times. One 
case did not have a vote at all, but in the remaining eight 
cases, the no-show default was because the Democratic Members 
voted not to defend. The FEC not showing up and defending 
itself is troubling. Will you vote for the FEC to defend itself 
in suits?
    Ms. Lindenbaum. Yes.
    Senator Cruz. You are committing to this Committee that you 
will not participate in a blocking, a party line blocking of 
the FEC showing up and defending itself in suits?
    Ms. Lindenbaum. I am committed, and I believe that it is 
important for an agency to defend itself in court. I think it 
does a number of things, including establishing a record. I 
cannot say definitively and that there would be no possible way 
for that to change. I cannot foresee one sitting here today, 
but I do not want to make that promise to you here in the event 
that there is something that is completely outside the realm 
that I do not know about, not being in the agency at the 
moment.
    Senator Cruz. Thank you.
    Chairwoman Klobuchar. Next up, Senator Hagerty.
    Senator Hagerty. Thank you, Madam Chair. Just to follow-up 
on Senator Cruz's line--initial line of questioning. I myself 
ran against a Stacey Abrams inspired Democrat opponent in 2020. 
I beat her by a considerable margin, more than 20 points. She 
has never conceded her loss either. This is a pattern that is 
very disturbing.
    I would like to turn to my questions, Ms. Lindenbaum to the 
function at the FEC, if I might. I know that you mentioned 
earlier that unanimity is great to achieve when possible, but 
there has been a lot of discussion about deadlock among the six 
members of the FEC. I know that there are many times when the 
FEC fails to muster four votes for certain policy or 
enforcement activities.
    Is the lack of bipartisan--if you could just give me an 
idea if that reveals a lack of bipartisan consensus on changing 
the status quo? Or is there a need to change the balance of the 
FEC to come out with what could be a partisan outcome?
    Ms. Lindenbaum. I think the structure is established by 
Congress. Should Congress decide to change the structure of the 
FEC, I leave that decision, of course, to Congress. I think 
that if I were to be confirmed, I would intend to be a 
consensus builder, and to work with my colleagues on both sides 
of the aisle to try to find common ground, to try to limit 
those deadlocks.
    I think most importantly, when it comes to advisory 
opinions. Advisory opinion deadlocks are one of the biggest 
areas of frustration for practitioners on both sides of the 
aisle because we are not getting clear guidance on what we can 
and cannot do. You as candidates and us as your lawyers need to 
know how to advise you properly. I commit to you that if I am 
confirmed, I will be working with my fellow Commissioners to 
try to find as much consensus as possible, particularly on 
those advisory opinions.
    Senator Hagerty. But to be clear, though, do you have an 
opinion yourself on whether the FEC should be reduced to a five 
member body, or should it remain at an even number?
    Ms. Lindenbaum. I can say that I have practiced in front 
of--in many different states and in areas where sometimes the 
regulatory body may have a partisan bias and it is a hard way 
to practice. I again leave it to your decision if that is a 
change that you and Congress decide to make. But if I am 
confirmed, I will be following, and part of the structure 
established by Congress.
    Senator Hagerty. Could I turn my question, my next question 
is regarding hold-over Commissioners? I am sure you are 
familiar with that circumstance. I wanted to get your thoughts 
on whether you think recent practice experience is an important 
qualification for an FEC Commissioner.
    Ms. Lindenbaum. I think it is a great value to have. I 
think that my experience as a practitioner will bring quite a 
bit to the current Commissioners, and the knowledge of what 
parties go through and how rules and the laws affect them. I do 
not think it needs to be a prerequisite. I think there are 
Commissioners on the current Commission that do not have that 
experience but bring quite a bit of value.
    Senator Hagerty. Clearly. In fact, the seat that you are 
taking, I think, has been--the person before you has been there 
since 2009. There is a hold-over Commissioner that has been 
there for 15 years.
    It seems to me that Congress imposed a 6-year term for a 
reason, and that one of the good reasons for that would be to 
ensure that the Commission includes recent practitioners who 
are familiar with the current state of the practice, and I 
expect that you would believe that your recent practice 
experience will benefit you as a Commissioner.
    I am interested to know if you think Commissioners holding 
over for significantly more than six years following their 
appointment creates the potential that they could lose 
perspective in terms of the current practice of campaign 
finance law, perspective and understanding both.
    Ms. Lindenbaum. I am sure it is possible. I can tell you 
that if I am confirmed, I commit to serving my full term. I 
also commit to staying in touch with the regulated community. 
That is through these rulemakings that we do and making sure 
that I am understanding the comments that are coming in.
    Campaigns evolve by the moment, it is feeling like. The 
current practices are constantly changing. It is important for 
the Commission, no matter the makeup, no matter who is on it, 
to stay up to date on what is happening, to make sure that the 
laws and the regulations enforcing the laws are clear and match 
what is happening.
    Senator Hagerty. Well, I agree with that. Finally, I would 
like to turn to a very different subject, and that is the issue 
of proper disclosure, failing to truly disclose the purpose of 
campaign expenditures.
    I think we are all familiar with the fine that the FEC 
announced just last week against the Democratic National 
Committee and Hillary Clinton's 2016 campaign for concealing 
their campaign disclosures regarding the funding of Fusion GPS 
to concoct this fabricated Steele Dossier. They did a 
tremendous amount of damage with this false opposition 
research. They did a tremendous amount of damage for years in 
terms of trying to undermine the credibility of a Presidential 
Administration.
    In doing this, they called the campaign disclosure that 
they used called their payments to a law firm, Perkins Coie, as 
legal and compliance consulting, concealing the fact that they 
paid a subcontractor, Fusion GPS, for the purpose that I just 
mentioned to create this fake dossier.
    I know you did not work on the case at the FEC, but 
generally speaking, do you agree that describing a disbursement 
for opposition research as legal and compliance consulting 
fails to clearly disclose its true purpose?
    Ms. Lindenbaum. I truly do not know enough about that case 
to be able to opine on that. I think it is important as a 
general matter that candidates and campaigns and other entities 
take care to report all of their expenditures. I think another 
important aspect is for the FEC to be clear about how you 
actually do reporting.
    It is something that is being done. The research and 
analytics division puts out guides on how to file your reports 
and what should be reported and how it should be reported. This 
is evolving. If confirmed, I commit that I will work with the 
RAD division to make sure that is very clear to all candidates.
    Senator Hagerty. I hope that members in the practice that 
you participate in right now listen carefully to your comments. 
Thank you. Thank you, Madam Chair.
    Chairwoman Klobuchar. Thank you very much. I want to thank 
the Senators. As you can see, Ms. Lindenbaum, we do not always 
have everyone just hanging out listening to a nominee. One, I 
think we found a good time to schedule this, but two, it is 
you. You have answered people's questions and I think people 
are genuinely interested in your nomination. I think they also 
are interested in the issues, as you could see, facing the FEC.
    We know there have been changes in our technology and 
everything else, and we want the FEC to be as up to date and 
able to cope with elections that are happening now as opposed 
to elections 100 years from now. We have appreciated how you 
have answered questions, which are understandable, about cases 
you have had in the past. We have had other nominees answer 
similar questions about clients and the like, how you pledged 
to follow the ethics rules, and also your broad bipartisan 
support, as reflected in the letter that I put on the record. 
The fact that you are focused on consensus building. I think 
you can see interest in that from both sides of the aisle.
    I look forward to advancing your nomination, and I 
encourage my colleagues to join me in supporting your 
confirmation. Senator Blunt, you want to say a few closing 
words here.
    Senator Blunt. Well, Chairwoman, thanks for holding the 
hearing today. Ms. Lindenbaum, thanks for your direct answers 
to the questions. I think your specific understanding, there is 
a difference in being an advocate as a litigant and the new 
role you would play, if confirmed. I look forward to supporting 
your nomination and was pleased to hear your determination to 
serve this term.
    Hopefully the Congress and the--whoever is in the White 
House in the future, will do a better job of either re-
nominating you for that new term or finding somebody else who 
is willing to serve so you can leave when you want to leave. 
But thanks.
    I think your answers were direct. I think we understood 
them all, and I think we particularly should understand how 
well you seem to perceive the importance of this role and the 
importance of you performing the job of an FEC Commissioner, 
not somebody else's job, whether that is a legislative job or 
an advocacy job. You are stepping into a new role, if 
confirmed, and I hope you are.
    Chairwoman Klobuchar. Very, very nice. Our independent 
Member, you are good, Senator King? Okay, excellent. The 
hearing record will remain open for one week, and we say 
goodbye to your grandma, your twins, everyone watching. We 
thank your family for being with us. The hearing is adjourned. 
Thank you.
    [Whereupon, at 4:06 p.m., the hearing was adjourned.]

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