[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE
FEDERAL ELECTION COMMISSION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 20, 2023
__________
Printed for the use of the Committee on House Administration
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.govinfo.gov
www.cha.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-865 WASHINGTON : 2026
=======================================================================
COMMITTEE ON HOUSE ADMINISTRATION
BRYAN STEIL, Wisconsin, Chairman
BARRY LOUDERMILK, Georgia JOSEPH MORELLE, New York,
H. MORGAN GRIFFITH, Virginia Ranking Member
GREG MURPHY, North Carolina TERRI A. SEWELL, Alabama
STEPHANIE BICE, Oklahoma NORMA TORRES, California
MIKE CAREY, Ohio DEREK KILMER, Washington
ANTHONY D'ESPOSITO, New York
LAUREL LEE, Florida
Mike Platt, Staff Director
Jamie Fleet, Minority Staff Director
C O N T E N T S
----------
Page
Opening Statements
Chairman Bryan Steil, Representative from the State of Wisconsin. 1
Prepared statement of Chairman Bryan Steil................... 2
Ranking Member Joseph Morelle, Representative from the State of
New York....................................................... 3
Prepared statement of Ranking Member Joseph Morelle.......... 5
Witnesses
Dara Lindenbaum, Chair, Federal Election Commission.............. 8
Prepared statement of Dara Lindenbaum........................ 10
Sean J. Cooksey, Vice Chairman, Federal Election Commission...... 12
Prepared statement of Sean J. Cooksey........................ 14
Shana M. Broussard, Commissioner, Federal Election Commission.... 19
Prepared statement of Shana M. Broussard..................... 21
Allen Dickerson, Commissioner, Federal Election Commission....... 32
Prepared statement of Allen Dickerson........................ 34
Ellen L. Weintraub, Commissioner, Federal Election Commission.... 37
Prepared statement of Ellen L. Weintraub..................... 39
James E. Trainor III, Commissioner, Federal Election Commission.. 42
Prepared statement of James E. Trainor III................... 44
Christopher Skinner, Inspector General, Federal Election
Commission..................................................... 122
Prepared statement of Christopher Skinner.................... 124
Submissions for the Record
Oversight letters and responses.................................. 52
Legal Newsline article........................................... 80
United States District Court for the District of Columbia
memorandum and opinion......................................... 83
The New York Times article....................................... 105
Questions for the Record
Dara Lindenbaum answers to submitted questions................... 150
Allen Dickerson answers to submitted questions................... 158
Sean Cooksey answers to submitted questions...................... 167
Christopher Skinner answers to submitted questions............... 172
James Trainor answers to submitted questions..................... 185
Ellen L. Weintraub answers to submitted questions................ 189
OVERSIGHT OF THE
FEDERAL ELECTION COMMISSION
----------
September 20, 2023
Committee on House Administration,
House of Representatives,
Washington, DC.
The Committee met, pursuant to call, at 10:21 a.m., in Room
1310, Longworth House Office Building, Hon. Bryan Steil
[Chairman of the Committee] presiding.
Present: Representatives Steil, Loudermilk, Murphy, Bice,
Carey, D'Esposito, Lee, Morelle, and Kilmer.
Staff Present: Caleb Hays, Deputy Staff Director, General
Counsel, Parliamentarian; Mike Platt, Staff Director; Hillary
Lassiter, Chief Clerk; William Johnson, Assistant Clerk; Alex
Deise, Elections Counsel, Assistant Parliamentarian; Jordan
Wilson, Director of Member Services; Thomas Lane, Elections
Counsel and Director of Election Coalitions; Khalil Abboud,
Minority Deputy Staff Director, Chief Counsel; Jamie Fleet,
Minority Staff Director; Sean Wright, Minority Senior Elections
Counsel; and Nikolas Youngsmith, Minority Elections Counsel.
OPENING STATEMENT OF HON. BRYAN STEIL, CHAIRMAN, A U.S.
REPRESENTATIVE FROM WISCONSIN
Chairman Steil. The Committee on House Administration will
come to order.
I note that a quorum is present. Without objection, the
chair may declare a recess at any time.
Also, without objection, the meeting record will remain
open for 5 legislative days so Members may submit any materials
they wish to include therein.
Today marks the first time in 12 years the Federal Election
Commission, or the FEC, has come before the Committee on House
Administration.
As Chairman of the Committee, I am focused on building
Americans' confidence in our elections by making it easier to
vote and hard to cheat.
Recently, I introduced the strongest election integrity
legislation in 20 years. Now we have passed the bill out of
this Committee, and nearly one-third of the House has joined in
support of the American Confidence in Elections Act.
The ACE Act makes critical reforms to support the FEC's
mission. The ACE Act adopts nearly all the Commission's most
recent nonpartisan priority legislative recommendations,
including a recommendation to get rid of the last paper filing,
which promotes transparency and allows for the efficient filing
of reports.
Further, the ACE Act limits foreign nationals' ability to
participate in American elections.
American elections are only for American citizens. The ACE
Act accepts the FEC's recommendation to prohibit foreign
nationals from contributing to State or local ballot
initiatives, or referendums.
Keeping foreign money out of our elections should be a top
priority for all of us. That is why I am promoting the ACE Act,
which closes the loophole that has been used by foreign
billionaires to pump hundreds of millions of dollars into
American elections.
For the FEC to do anything, a majority vote of the
Commissioners is required. This means at least four
Commissioners need to agree.
Some of my colleagues on the left have argued that the
Commission should be made up of five Commissioners. This would
turn it into a partisan agency.
The FEC works well together and should remain nonpartisan.
In fact, since January 1st, 2021, the FEC has closed 521
enforcement matters with an agreement rate of over 90 percent.
We must maintain the bipartisan structure of the FEC so
Americans can trust its decisions are evenhanded.
It is important that every decision by the FEC begins with
an examination of current law and the First Amendment. Every
action the FEC takes puts it up against the First Amendment. It
is vital that Congress and the FEC ensure the agency strikes
the right balance.
The First Amendment holds that political speech is
protected speech, which is why the ACE Act has important
provisions to protect free speech. We want to prevent Federal
agencies from being weaponized.
That is why the ACE Act will require the IRS, the
Securities and Exchange Commission, and all other Federal
Government agencies to focus on their actual missions. The ACE
Act prohibits these Federal agencies from getting involved in
limiting speech or setting Americans up for retribution for
speaking their minds.
The FEC plays a major role in ensuring Americans can have
confidence in their elections.
One concern I hear about, and this is really about
transparency, is for the inability for Americans to download
donor information of Act Blue and Win Red from the FEC's
website, and I would like to touch on that later.
I am glad we are able to welcome all six Commissioners and
the agency's inspector general before us today.
Thank you.
[The prepared statement of Chairman Steil follows:]
PREPARED STATEMENT OF CHAIRMAN STEIL
Today marks the first time in 12 years the Federal Election
Commission, or the FEC, has come before the Committee on House
Administration.
As chairman of the Committee, I am focused on building
Americans' confidence in our elections by making it easier to
vote and hard to cheat.
Recently, I introduced the strongest election integrity
legislation in 20 years. Now we have passed the bill out of
this Committee, and nearly one third of the House has joined in
support of the American Confidence in Elections Act.
The ACE Act makes critical reforms to support the FEC's
mission. The ACE Act adopts nearly all the Commission's most
recent nonpartisan priority legislative recommendations,
including a recommendation to get rid of the last paper filing,
which promotes transparency and allows for the efficient filing
of reports.
Further, the ACE Act limits foreign nationals' ability to
participate in American elections.
American elections are only for American citizens. The ACE
Act accepts the FEC's recommendation to prohibit foreign
nationals from contributing to State or local ballot
initiatives, or referendums.
Keeping foreign money out of our elections should be a top
priority for all of us. That is why I am promoting the ACE Act,
which closes the loophole that has been used by foreign
billionaires to pump hundreds of millions of dollars into
American elections.
For the FEC to do anything, a majority vote of the
Commissioners is required. This means at least four
Commissioners need to agree.
Some of my colleagues on the left have argued that the
Commission should be made up of five Commissioners. This would
turn it into a partisan agency.
The FEC works well together and should remain nonpartisan.
In fact, since January 1st, 2021, the FEC has closed 521
enforcement matters with an agreement rate of over 90 percent.
We must maintain the bipartisan structure of the FEC so
Americans can trust its decisions are evenhanded.
It is important that every decision by the FEC begins with
an examination of current law and the First Amendment. Every
action the FEC takes puts it up against the First Amendment. It
is vital that Congress and the FEC ensure the agency strikes
the right balance.
The First Amendment holds that political speech is
protected speech, which is why the ACE Act has important
provisions to protect free speech. We want to prevent Federal
agencies from being weaponized.
That is why the ACE Act will require the IRS, the
Securities and Exchange Commission, and all other Federal
Government agencies to focus on their actual missions. The ACE
Act prohibits these Federal agencies from getting involved in
limiting speech or setting Americans up for retribution for
speaking their minds.
The FEC plays a major role in ensuring Americans can have
confidence in their elections.
One concern I hear about, and this is really about
transparency, is for the inability for Americans to download
donor information of Act Blue and Win Red from the FEC's
website, and I would like to touch on that later.
I am glad we are able to welcome all six Commissioners and
the agency's inspector general before us today.
I now recognize the Ranking Member, Mr. Morelle, for 5
minutes for the purpose of providing an opening statement.
OPENING STATEMENT OF HON. JOSEPH MORELLE, RANKING MEMBER, A
U.S. REPRESENTATIVE FROM NEW YORK
Mr. Morelle. Good morning. Thank you, Chairman Steil, for
yielding, for gathering us here today.
I also want to thank our Commissioners not only for their
presence here today, but also for your continued service.
The Federal Election Commission is a small agency, but it
has been tasked with the critical mission of protecting the
health of our democracy.
Ahead of this hearing, I asked the FEC to provide our
Committee with data about its most pressing challenges and
opportunities.
There is certainly progress worth noting. The Commission
has again reached a quorum and is able to act. Rulemakings that
have languished for years have moved forward. The backlog of
enforcement actions has been significantly reduced.
I think you all deserve credit for that.
Additionally, each year the Commission shares with those in
this Committee and within the Congress bipartisan legislative
recommendations, and many of those high priority reforms are
common sense and merit serious consideration. I am grateful for
that as well.
At the markup of the ACE Act, Committee Democrats offered
several of the proposals that you have asked for in terms of
commonsense changes. Unfortunately, they were rejected.
I am hopeful today's hearing will help my colleagues see a
path forward on some of these bipartisan requests. I appreciate
that.
In particular, the Committee's successful Administrative
Fines Program sunsets at the end of this year and I believe
should be extended. I hope you will agree with me.
I would ask the Chairman and colleagues on both sides of
the aisle to support that, and I think we should do that as
quickly as is possible.
I want to commend the thorough and diligent work of your
staff. I think they are dedicated public servants helping to
ensure our elections are transparent and accountable, and they
have worked tirelessly to provide exhaustive answers to the
dozens of questions that we, on this side of the Committee,
have asked over the past year.
I am grateful for that and your leadership in that regard.
The FEC's written testimony highlights many of these same
examples of progress. Progress for its own sake, however, is
not the sole benchmark of success. I just want to spend a
moment or two just talking about this.
The Committee needs to assess whether the sole mission of
the FEC is being fulfilled, and that is protecting the
integrity of Federal campaign finance process and ensure
transparency for the American people.
On this score, the FEC's own statistics are revealing, and
I will get into this a little now and then in our questions.
The numbers tell a story of disagreement and deadlock,
especially on the most important issues facing the FEC.
Under current law, the FEC's nonpartisan career staff
cannot investigate enforcement matters without the affirmative
vote of four or more Commissioners.
When Commissioners deadlock with a three-to-three vote on
an enforcement case, three Commissioners are able to
effectively block an investigation in its entirety, preventing
any possibility that the FEC will ever hold the alleged
wrongdoers accountable.
Think about this. Professional staff makes a recommendation
without the assent of four members of the panel, the
investigation cannot continue.
Since the 2010 Citizens United decision by the Supreme
Court, which opened the door to super-PACs, dark money, and
unlimited contributions for elections, raising the stakes even
higher for your enforcement agency, the FEC has failed to act
in dozens of cases where the nonpartisan professional career
staff recommended otherwise. I just want to cite some
statistics in the remaining moments I have.
The nonpartisan career staff recommended action in 59
matters alleging unlawful coordination between committees. The
Commissioners did so in just seven of those cases, not
adjudging whether they were with or without merit in the final,
but just whether or not an investigation should continue.
In matters requiring dark money groups to register and
report with the FEC, the Commission acted on only 5 of the
nonpartisan career staff's 24 recommendations.
On foreign interference, the FEC has acted on barely half
of the nonpartisan career staff's recommendations.
Most troubling in my mind is the FEC's apparent partisan
enforcement of matters related to former President Trump.
To date, the FEC has considered 56 matters involving
allegations that The Trump Organization violated the law.
After reviewing these matters, the nonpartisan career staff
recommended Commissioners find reason to believe a violation
occurred in 26 of those 56 matters. Republican Commissioners
voted down all 26.
These votes carry the unmistakable odor of partisanship.
Considering the data provided this Committee on the most
crucial matters facing the FEC since the Citizens United
decision, 12 out of 109 nonpartisan staff recommendations have
been advanced--meaning, you have about a .110 batting average
with the Commission.
As a devout fan of the St. Louis Cardinals--sorry,
Milwaukee Brewers--you would not be playing not only for the
Cardinals, you would not be playing in the minor leagues or
anywhere else in baseball if you had a .110 batting average.
It raises the question--and I know I am running out of
time, so I will just summarize and I will come back to it with
questions--but we need to seriously think about whether the
nonpartisan professional staff is going to be allowed to
investigate matters they think are appropriate. Then you can
adjudicate as you see fit, but at least allow them to
investigate.
With that, Mr. Chair, I will yield back.
[The prepared statement of Ranking Member Morelle follows:]
PREPARED STATEMENT OF RANKING MEMBER MORELLE
The Federal Election Commission is a small agency, but it
has been tasked with the critical mission of protecting the
health of our democracy.
Ahead of this hearing, I asked the FEC to provide our
Committee with data about its most pressing challenges and
opportunities.
There is certainly progress worth noting. The Commission
has again reached a quorum and is able to act. Rulemakings that
have languished for years have moved forward. And the backlog
of enforcement actions has been significantly reduced.
I think you all deserve credit for that.
Additionally, each year the Commission shares with those in
this Committee and within the Congress bipartisan legislative
recommendations, and many of those high priority reforms are
common sense and merit serious consideration. I am grateful for
that as well.
At the markup of the ACE Act, Committee Democrats offered
several of the proposals that you have asked for in terms of
commonsense changes. Unfortunately, they were rejected.
I am hopeful today's hearing will help my colleagues see a
path forward on some of these bipartisan requests. I appreciate
that.
In particular, the Committee's successful Administrative
Fines Program sunsets at the end of this year and I believe
should be extended. I hope you will agree with me.
I would ask the chairman and colleagues on both sides of
the aisle to support that, and I think we should do that as
quickly as is possible.
And I want to commend the thorough and diligent work of
your staff. I think they are dedicated public servants helping
to ensure our elections are transparent and accountable, and
they have worked tirelessly to provide exhaustive answers to
the dozens of questions that we, on this side of the Committee,
have asked over the past year.
I am grateful for that and your leadership in that regard.
The FEC's written testimony highlights many of these same
examples of progress. And progress for its own sake, however,
is not the sole benchmark of success. And I just want to spend
a moment or two just talking about this.
The Committee needs to assess whether the sole mission of
the FEC is being fulfilled, and that is protecting the
integrity of Federal campaign finance process and ensure
transparency for the American people.
On this score, the FEC's own statistics are revealing, and
I will get into this a little now and then in our questions.
The numbers tell a story of disagreement and deadlock,
especially on the most important issues facing the FEC.
Under current law, the FEC's nonpartisan career staff
cannot investigate enforcement matters without the affirmative
vote of four or more Commissioners.
When Commissioners deadlock with a three to three vote on
an enforcement case, three Commissioners are able to
effectively block an investigation in its entirety, preventing
any possibility that the FEC will ever hold the alleged
wrongdoers accountable.
Think about this. Professional staff makes a recommendation
without the assent of four members of the panel, the
investigation cannot continue.
Since the 2010 Citizens United decision by the Supreme
Court, which opened the door to super PACs, dark money, and
unlimited contributions for elections, raising the stakes even
higher for your enforcement agency, the FEC has failed to act
in dozens of cases where the nonpartisan professional career
staff recommended otherwise. And I just want to cite some
statistics in the remaining moments I have.
The nonpartisan career staff recommended action in 59
matters alleging unlawful coordination between committees. The
Commissioners did so in just seven of those cases, not
adjudging whether they were with or without merit in the final,
but just whether or not an investigation should continue.
In matters requiring dark money groups to register and
report with the FEC, the Commission acted on only 5 of the
nonpartisan career staff's 24 recommendations.
On foreign interference, the FEC has acted on barely half
of the nonpartisan career staff's recommendations.
Most troubling in my mind is the FEC's apparent partisan
enforcement of matters related to former President Trump.
To date, the FEC has considered 56 matters involving
allegations that The Trump Organization violated the law.
After reviewing these matters, the nonpartisan career staff
recommended Commissioners find reason to believe a violation
occurred in 26 of those 56 matters. Republican Commissioners
voted down all 26.
These votes carry the unmistakable odor of partisanship.
And considering the data provided this Committee on the most
crucial matters facing the FEC since the Citizens United
decision, 12 out of 109 nonpartisan staff recommendations have
been advanced meaning, you have about a .110 batting average
with the Commission.
As a devout fan of the St. Louis Cardinals sorry, Milwaukee
Brewers you would not be playing not only for the Cardinals,
you would not be playing in the minor leagues or anywhere else
in baseball if you had a .110 batting average.
It raises the question and I know I am running out of time,
so I will just summarize and I will come back to it with
questions but we need to seriously think about whether the
nonpartisan professional staff is going to be allowed to
investigate matters they think are appropriate. And then you
can adjudicate as you see fit, but at least allow them to
investigate.
Chairman Steil. I would note to the Ranking Member, a .110
batting average may allow you to play for the Yankees this
season.
[Laughter.]
Chairman Steil. Where is Mr. D'Esposito when you need him?
Without objection, all other Members' opening statements
will be made part of the hearing record if they are submitted
to the Committee clerk by 5 p.m. today.
Today, we have two witness panels, beginning with the
Commissioners of the Federal Election Commission. After all
Members have had the opportunity to question our first panel,
we will then move to a second panel with FEC Inspector General
Christopher Skinner.
Pursuant to paragraph (b) of Committee Rule 6, the first
panel of witnesses will please stand and raise your right hand.
[Witnesses sworn.]
Chairman Steil. Let the record show that the witnesses
answered in the affirmative and may be seated.
I will now introduce our witnesses.
Our first witness is Chair Dara Lindenbaum, nominated as a
Democrat in May 2022. Prior to her appointment, the Chair
worked as an attorney where she advised candidates, political
committees, and organizations on campaign finance and election
law.
Our next witness, Vice Chair Sean Cooksey, was nominated as
a Republican in December 2020. Prior to his appointment, Mr.
Cooksey served as general counsel to U.S. Senator Josh Hawley
working on the Senate Judiciary Committee and advising the
Senator on issues including constitutional law, judicial
nominations, election law, and an array of other issues.
Next, we have Commissioner Shana Broussard, who joined the
Commission in 2008 as an attorney in the Enforcement Division
of the Office of General Counsel. The Commissioner was
nominated as a Democrat in December 2020.
Next, we have Commissioner Allen Dickerson, who was
nominated as a Republican in December 2020. Prior to his
appointment, he was legal director of the Institute of Free
Speech, where he led a nationwide First Amendment litigation
practice.
We also welcome Commissioner Ellen Weintraub, who has
served as Commissioner of the U.S. Federal Election Commission
since 2002 and chaired it for the third time in 2019. The
Commissioner was appointed by George W. Bush as a Democrat on
the Commission via recess appointment in 2002 and was confirmed
by the U.S. Senate in 2003.
Finally, we welcome Commissioner Trey Trainor, who was
nominated as a Republican in May 2020. The Commissioner has
practiced law for two decades in the areas of election law,
campaign finance law, and ethics.
We appreciate you all being with us here today and look
forward to your testimony.
Please remember the microphones in front of you, and you
have to pull a little bit close to you. I know we have got all
six of you at a big table. You all have 5 minutes for your
testimony.
We will begin with you, Chair Lindenbaum.
STATEMENTS OF HON. DARA LINDENBAUM, CHAIR, FEDERAL ELECTION
COMMISSION; THE HONORABLE SEAN J. COOKSEY, VICE CHAIRMAN,
FEDERAL ELECTION COMMISSION; THE HONORABLE SHANA M. BROUSSARD,
COMMISSIONER, FEDERAL ELECTION COMMISSION; THE HONORABLE ALLEN
DICKERSON, COMMISSIONER, FEDERAL ELECTION COMMISSION; THE
HONORABLE JAMES E. TRAINOR III, COMMISSIONER, FEDERAL ELECTION
COMMISSION; AND THE HONORABLE ELLEN L. WEINTRAUB, COMMISSIONER,
FEDERAL ELECTION COMMISSION
STATEMENT OF DARA LINDENBAUM
Ms. Lindenbaum. Thank you. Chairman Steil, Ranking Member
Morelle, and Members of the Committee, thank you for inviting
me to speak about the Federal Election Commission.
As the newest member of the FEC and this year's Chair, I am
delighted to share our agency's critical work, achievements,
challenges, and the path forward.
The core mission of the FEC is to ensure transparency,
compliance, and fair enforcement of the Federal campaign
finance laws.
No more than three of the FEC's six Commissioners may be
affiliated with the same political party. Because four votes
are necessary to approve most agency actions, we must cross
party lines to find common ground on issues ranging from
staffing levels to budget priorities to regulatory language to
enforcement matters.
Of course, we will have meaningful disagreements, but I
have made the focus of my Chair year ensuring the FEC is a
modern, functioning agency.
I would like to share some of the many improvements and
changes we have made this year and highlight some of our
lesser-known but mission-critical programs.
I am proud that after years of internal hand-wringing and
external frustrations, we successfully revamped our audit
procedures, resulting in a process that strikes the appropriate
balance between efficiency, procedural protections for audited
committees, transparency, and encouraging voluntary compliance
with the law.
In April of this year, we approved and updated our
memorandum of understanding with the Department of Justice,
which establishes the guidelines for the FEC and DOJ to share
information and advance the mission of both agencies.
We have two new open public comment periods.
The first is a notice of availability of a petition for
rulemaking surrounding the fraudulent misrepresentation of
campaign authority through artificial intelligence and campaign
ads.
The second is a comment period to identify the ways to
improve our filing systems and the usability of our website
ahead of the elections. This also includes downloading
information from our website and how you view it.
Improving our hiring and personnel processes has been one
of my highest priorities. On the personnel committee,
Commissioner Trainor and I timely approve hiring vacancies and
use our experience from the private sector to speed up staff
hiring and find new recruitment streams so that we do not miss
out on talented candidates.
The FEC's educational opportunities, aimed at promoting
voluntary compliance with campaign finance laws, continue to be
a success.
Our information division has excelled in creating engaging,
cost-effective educational programs from the regulated
community, consistently receiving high praise for their
exceptional presentations.
Our dedicated information division and reports analysis
division play pivotal roles, answering thousands of calls each
year with substantive questions about campaign finance rules
and regulations and the intricate reporting questions.
These callers often have limited resources to hire lawyers
and other experts, so our patient and dedicated staff ensure
that those engaging in the political process have access to the
information and guidance they need to navigate the complexities
of campaign finance law and maintain compliance.
Of course, significant challenges remain that require
additional funding.
Historically, the FEC has not asked for or received
sufficient funding to keep pace with inflation or the rapidly
increasing volume of transactions reported. This has put us in
a dire situation with increasingly outdated and vulnerable IT
systems as the volume of transactions continues to increase.
In 2022, we advocated for a meaningful increase in funding
for Fiscal Year 2023 to allow our agency to begin meeting these
challenges.
Our recent successes with hiring and beginning the long-
overdue upgrades to our IT infrastructure are due in large part
to our increased appropriations from Congress in Fiscal Year
2023.
With continued investment in future appropriations, we can
continue to build our workforce and fortify our IT systems in
the face of ever-increasing spending.
I have had the privilege of sitting in on staff meetings
across the agency over the past few months to acknowledge and
thank our staff for their work, and I have been consistently
impressed by their professionalism and dedication.
Despite working with antiquated systems and limited
resources, our staff continue to bring energy and creativity
every day to further our mission of ensuring transparency,
compliance, and fair enforcement of the Federal campaign
finance laws.
I look forward to taking your questions.
[The prepared statement of Ms. Lindenbaum follows:]
PREPARED STATEMENT OF DARA LINDENBAUM
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much.
I now recognize Vice Chair Cooksey.
STATEMENT OF SEAN J. COOKSEY
Mr. Cooksey. Good morning, Chairman Steil, Ranking Member
Morelle, and Members of the Committee on House Administration.
It is an honor to appear before you today to testify about the
work of the Federal Election Commission and to answer your
questions.
My name is Sean Cooksey, and I currently serve as the
Commission's Vice Chairman. I have submitted lengthier written
testimony to the Committee, but in the limited time I have I
would like to raise two points.
First, as Chair Lindenbaum discussed, since the Commission
regained its full slate of Commissioners at the end of 2020,
the agency has been hard at work again.
Let me give you a couple of examples.
In the last 33 months, we have cut our enforcement backlog
by more than half, from 446 enforcement matters pending when I
arrived to 198. That includes a 92 percent reduction in the
number of reports waiting for Commissioners' action from 223
reports sitting on our desks to now just 19.
Importantly, of the more than 500 enforcement matters that
the agency has completed since January 2021, the Commission
reached some kind of bipartisan agreement in 90 percent of
them. Oftentimes, those cases were decided unanimously.
Similar statistics are true for other areas of our work,
such as advisory opinions and regulations.
This is not to say that the job at the Commission is easy
or that we do not frequently disagree. We do. I assure you, my
colleagues and I are doing our level best to work together to
apply the law to the facts before us and to craft policies that
fulfill our agency's mission to the American people.
The second point I want to raise is a request.
As Ranking Member Morelle mentioned, the Commissioners
before you are making every effort to improve the agency, but
some things only Congress can do.
The Commission's top legislative recommendation to Congress
is to extend or make permanent the Commission's Administrative
Fine Program, which is set to expire at the end of this year.
The Administrative Fine Program authorizes the Commission
to assess standardized fines for basic campaign finance
reporting violations and to thereby avoid putting campaigns
through the slower, more expensive enforcement process at the
Commission.
The program works well. Last year, in 2022, the Commission
issued over $1 million in administrative fines. It saves the
Government and taxpayers money, and it promotes fast and fair
enforcement of the law. That is why Congress has reauthorized
the program six times before, but we need Congress to do it
again.
Last week, the House of Representatives was sent
legislation that reauthorizes the program for another 10 years
after it passed unanimously in the U.S. Senate 2 weeks ago.
I would urge the House to pass S. 2747 and send to it to
the President's desk. It is the most direct and immediate way
that this Committee can help improve the FEC.
I would like to end with a note of thanks.
First, I would like to thank the career staff at the FEC.
Without them, the work of the agency would not be possible, and
the agency's accomplishments belong more to them than to any
Commissioner.
Second, I would like to thank the Members of this Committee
and their staffs. Congress' oversight of the executive branch--
and especially of independent agencies like the FEC--is
critical to ensuring the democratic accountability of our
Government. I know firsthand that this would not be possible
without the tireless efforts of dedicated staffers in each of
your offices.
With that, thank you again for the opportunity to testify,
and I look forward to taking your questions.
[The prepared statement of Mr. Cooksey follows:]
PREPARED STATEMENT OF SEAN J. COOKSEY
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much, Vice Chair,
Commissioner.
I would now like to recognize Commissioner Broussard.
STATEMENT OF SHANA M. BROUSSARD
Ms. Broussard. Good morning. Good morning Chairman Steil,
Ranking Member Morelle, and Members of the Committee. Thank you
for inviting me and my colleagues to testify today. I am eager
to highlight the agency's accomplishments before our oversight
Committee.
We have had a full complement on the Commission since the
Senate confirmed me and two of my colleagues in December 2020.
While there have been notable challenges since then, I remain
committed to transparency, fairly enforcing our campaign
finance laws, and fostering an agency culture that builds on
the dedicated efforts of my former colleagues at the staff
level.
I consider service on the Commission a privilege. Indeed,
my commitment to the agency and its mission began long before
my appointment, beginning in 2008 as a staff attorney in the
Commission's enforcement division, and later as counsel to a
Commissioner.
Those experiences allowed me to develop not only legal
knowledge, but an understanding of the agency that gives me a
unique perspective represented on the Commission.
Today, I can look back on almost 3 years on the Commission
with a measure of satisfaction--and some concern--and I look
forward to future years with continued dedication and hope.
I take satisfaction in having led the Commission's dramatic
reduction of the enforcement docket backlog following a loss of
a quorum of 15 months and under the uncertainty of a global
pandemic and an executive order for governmentwide remote work.
When the quorum was restored, the backlog stood at 450
matters and slightly exceeded that number when I assumed the
Chair in January 2021. This was almost 75 percent from when the
Commission lost a quorum.
By October 2021, through a disciplined and methodical
approach, the Commission had closed 194 matters, which was the
highest number achieved since Fiscal Year 2009.
While I am proud of this achievement, I am not oblivious to
the potential for a backslide with a likely increase in the
number of agency actions as we enter a Presidential election.
At the same time, the Commission has experienced
significant attrition. Agency staff levels thinned to 260 at
Fiscal Year 2022. This means that fewer staff shoulder the
rising workload, which risks a negative effect both on employee
morale and on the agency's capacity to timely respond to
enforcement matters and advisory opinion requests. Thanks to
the effort of Chair Lindenbaum and Commissioner Trainor, as of
today, our agency FTEs stand at 305, with more to come.
Above all, I am hopeful. On the regulations committee, I
advanced a longstanding rulemaking with the joint effort of my
co-chair, Commissioner Allen Dickerson, whose keen analysis
only sharpened our focus and won wider support for our efforts.
Significantly, since 2011, the Commission has been
considering an internet disclaimer rulemaking. Last December,
the Commission published a final rule.
Beginning last year, I have led an effort that is a passion
of mine. The issue--the ability for candidates to use campaign
funds for compensation while they are campaigning--has both a
macro and micro implication.
On a micro level, it is about opening the possibility of
running for Federal office for a diverse population. On a macro
level, it enabled our democracy to become more perfect by
creating opportunities for our Federal elective bodies to
reflect the demographics of our Nation.
In December 2022, the Commission formally initiated a
rulemaking, and we are now in the process of negotiating final
rules.
Finally, after a 3-year lapse, in 2021 the Commission
submitted bipartisan legislative recommendations that can help
strengthen the agency and the laws we enforce.
I was excited to see the Senate pass the bill to extend the
Admin Fines Program for 10 years. I also want to urge this
Committee that bipartisan support in strengthening FECA, the
prohibition against all foreign national involvement in our
campaign process, is needed.
In closing, I am inspired now as ever to serve the
Commission. Your continued support can help fulfill our
mission, and doing so cultivate public trust in our electoral
process and elected officials.
I thank you again for the opportunity to appear today.
[The prepared statement of Ms. Broussard follows:]
PREPARED STATEMENT OF SHANA M. BROUSSARD
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Chairman Steil. Thank you, Commissioner Broussard.
Commissioner Dickerson, you are now recognized.
STATEMENT OF ALLEN DICKERSON
Mr. Dickerson. Good morning. Thank you Chairman Steil,
Ranking Member Morelle, Members of the Committee. I also want
to begin by thanking you for holding today's hearing.
The Federal Election Commission has been given an
especially delicate mission: regulating activity at the core of
the First Amendment's protections for political speech and
association.
Precisely because that work is difficult, we do it best in
dialogue with Congress and the courts. After more than a decade
without a formal oversight hearing, I am honored and gratified
to join my colleagues here today.
This is a new Commission. On a body designed for staggered
6-year terms, five of us have served for less than 4. We
inherited an agency that had lacked a quorum for virtually the
entirety of the 2020 election cycle and where a backlog of
enforcement cases and regulatory matters had grown to an
unprecedented level.
Today--joining the chorus--the situation is very different.
Taking the gavel on virtually her first day as a Commissioner,
Shana Broussard drove hard to resolve hundreds of stale
enforcement matters and to clear the decks for future work, and
that vital effort has allowed the Commission to focus on long-
needed reforms.
More than a decade after the D.C. Circuit's decision in
SpeechNow v. FEC, we amended our PAC organizational forms to
recognize the existence of super-PACs. We successfully
concluded a rulemaking on internet disclaimers that had laid
dormant since 2011. We completed a top-to-bottom review of our
auditing procedures.
Each of these decisions was made on a resoundingly
bipartisan basis.
These successes illustrate, I think, the leadership of my
colleagues and our willingness to work with each other to find
common ground against a challenging legal backdrop.
It is common to begin discussions of the FEC by invoking
Judge David Tatel's pointed observation in AFL-CIO against FEC
that the Commission is ``unique'' in that it ``has as its sole
purpose the regulation of core constitutionally protected
activity,'' and that is certainly true.
The late Justice Antonin Scalia put his finger on perhaps a
deeper problem. He observed that campaign finance law is ``so
intricate'' that he could not figure it out.
That complexity is a result of Congress' consistent failure
over decades to update the law to respect judicial precedent
with the Commission and ordinary Americans caught in the
middle.
It is not new. Back in 1976, in Buckley v. Valeo, seven
members of the Supreme Court, including Chief Justice Burger,
but also including Justices Thurgood Marshall and William
Brennan, held that the phrase, quote, ``for the purpose of
influencing an election,'' end quote, the keystone term in the
Act, was unconstitutionally vague.
``Such a distinction,'' they noted, ``offers no security
for free discussion. In these conditions it blankets with
uncertainty whatever may be said. It compels the speaker to
hedge and trim.''
As a result, we are unique in another way: We are the only
Federal agency whose governing statute has been in judicial
receivership since its inception.
Much of the Act has been held unconstitutional over so long
a period of time that with every passing year it becomes more
difficult for ordinary Americans--and even most specialists--to
understand what is and is not permitted.
There are many downsides to this state of affairs, but I
want to highlight just one more.
Because the text of the Act and the reality of the law are
so qualitatively different, it is easy to fall into false
certainly about what the law actually is and all too easy to
perceive illegality rather than thorny questions, especially
where one's political opponents are involved.
Because the Commission's enforcement efforts are driven in
large part by third-party complaints, there is a clear
incentive to use the complaint process and suggest, from
ignorance or malice, that novel questions are, in fact,
``clear'' or ``obvious'' and to blame the Commission when it
takes seriously its duty, as the Supreme Court put it, to
ensure that ``the tie goes to the speaker, not the censor.''
Fortunately, while my colleagues and I sometimes disagree
on the correct interpretation of law in particular cases, I do
believe we share a commitment to simplifying and explaining the
law so that average Americans who wish to participate in our
political process may do so without peril.
As Justice Kennedy writing for the Court in 2010 properly
stated, ``The First Amendment does not permit laws that force
speakers to retain a campaign finance attorney . . . before
discussing the most salient political issues of our day.''
Thank you again for the invitation. I look forward to your
questions.
[The prepared statement of Mr. Dickerson follows:]
PREPARED STATEMENT OF ALLEN DICKERSON
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you, Commissioner Dickerson.
Commissioner Weintraub, you are now recognized.
STATEMENT OF ELLEN L. WEINTRAUB
Ms. Weintraub. Chairman Steil, Ranking Member Morelle, and
Members of the Committee, thank you for inviting me to testify
today. I am pleased to be here with my colleagues on behalf of
the Federal Election Commission to discuss the important work
of our agency.
I cannot say this is the most exciting thing that I am
doing this fall, because my daughter's getting married in a
couple of weeks. This is a close second.
The FEC is charged with administering and enforcing the
Federal campaign finance laws and providing public disclosure
and transparency in our elections to empower a well-informed
electorate, a goal the Supreme Court has robustly endorsed
since the seminal 1976 case of Buckley v. Valeo.
I sit at this table with my fellow Commissioners, but the
agency is not made up of only six individuals. While we take
the votes, we cannot fulfill this agency's crucial mission
without the hundreds of people who are not at this table.
Our FEC staff is made up of some of the most dedicated
public servants I have ever met. They are diligent, thoughtful,
and provide great service to the American people. I would be
remiss if I did not take this opportunity to thank them for all
of their hard work and commitment to the mission of our agency.
The FEC has been through a lot in the last few years. We
went through a total of 15 months during the record-shattering
fundraising of the 2020 election when we did not even have a
quorum of Commissioners to make decisions.
That ended at the end of 2020 when we regained a full
complement of Commissioners for the first time since 2017. We
have been pretty busy ever since.
Not surprisingly, we had quite a backlog of enforcement
decisions to make when we regained the quorum. We were
fortunate in 2021 to have the steady and determined leadership
of then-Chair Broussard, who made attacking the backlog a top
priority.
Thanks to her efforts and the continued focus by 2022 Chair
Dickerson and 2023 Chair Lindenbaum, and the hard work of all
of my colleagues, we have virtually eliminated the backlog of
cases awaiting decisions by the Commission for the first time
in many years.
Now, I did not agree with the outcomes of each of those
decisions, but eliminating the backlog so that cases do not
languish and fall due to the statute of limitations is an
important accomplishment.
Public confidence in the political process depends not only
on laws and regulations to ensure transparency, but also on the
awareness that those who disregard the campaign finance laws
will face consequences.
In that regard, I want to highlight the updated memorandum
of understanding with the Department of Justice that the
Commission adopted in April of this year. I want to thank Vice
Chairman Cooksey for partnering with me on an ad hoc committee
to oversee this project. I particularly want to thank the
leadership of the Department of Justice, who made this a
priority and worked cooperatively with us to get it done.
I believe this agreement will aid in effective enforcement
of the law, a goal that the American people expect and deserve.
There have been accomplishments. I want to thank
Commissioner Trainor, who serves with me on the press
committee, for helping to ensure that the public is informed
about those accomplishments.
As always, there is still plenty of work to be done. We
have made strides on the rulemaking front thanks to the efforts
of Commissioner Broussard and Commissioner Dickerson on our
regulations committee. Important rulemaking projects are
ongoing, such as our efforts to update our rules on candidate
compensation to make it possible for citizens from all walks of
life to consider public service.
Here too, however, we face a backlog of projects. It has
been more than 13 years since the Supreme Court's Citizens
United decision and its progeny created the entities we now
know as super-PACs, but we have yet to promulgate regulations
governing them.
Our coordination regulations have not been updated to take
into account the significant role that super-PACs now play in
the campaign finance arena, and the old rules are not adequate
to bear the weight that has been placed upon them.
Citizens United reiterated the importance of disclosure,
the heart of the FEC's mission. The Court explained that
disclosure enables the electorate to make informed decisions
and to give proper weight to different speakers and messages,
or, as Justice Scalia put it in his concurrence in Doe v. Reed,
``Requiring people to stand up in public for their political
acts fosters civic courage, without which democracy is
doomed.''
Undisclosed dark money is a large and growing problem that
undermines the Court's promise of transparency and the FEC's
fundamental mission. The FEC can and should do more to address
it, and we have just begun to deal with new challenges, such as
the potential role of artificial intelligence in campaigning.
I want to echo my colleagues' advocacy for our unanimous
legislative recommendations, including extending the successful
Administrative Fine Program and amending the FECA to expand
protections against foreign influence.
I would like to put in a plug for our budget request, which
would allow the agency to continue to meet its increased
workload and make needed updates to the agency's critical IT
infrastructure.
Progress has been made, but challenges remain. Dark money,
foreign malign influence, new technology, cybersecurity, AI,
budget constraints, these are just a few of the issues
confronting the FEC.
I stand ready to work with my colleagues at the FEC and
with our oversight Committees in Congress to address these
challenges. I look forward to a productive exchange here today
toward that goal.
[The prepared statement of Ms. Weintraub follows:]
PREPARED STATEMENT OF ELLEN L. WEINTRAUB
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Chairman Steil. Thank you, Commissioner Weintraub, and
congratulations to your daughter on her wedding.
Commissioner Trainor, you are now recognized.
STATEMENT OF JAMES E. TRAINOR III
Mr. Trainor. Thank you, Mr. Chairman. Thank you Chairman
Steil, Ranking Member Morelle, and Members of the Committee. It
is an honor to appear before you today and to answer your
questions.
As I noted in my written submission and as you have heard
hear, there is great bipartisan work being done at the FEC.
Today, however, I am compelled to draw the attention of this
Committee to a disturbing situation that has become
increasingly prevalent in today's politics.
To those who have been paying attention, the problem is
stark. It is the growing weaponization of Government to harass
and hinder the political participation of our citizenry in the
democratic process.
The Federal Election Commission has become a weapon in two
specific ways in that process.
First, the Commission adopted new procedures that I believe
are inconsistent with our statute and may violate the
constitution and are the gateway to criminalizing ordinary
campaign activity.
Second, the Commission entertains vague complaints
regarding alleged violations of the Federal Election Campaign
Act, to the detriment of the rights of innocent respondents.
Make no mistake, the current headlines about the criminal
prosecution of political actors reflects a trend that is going
to continue for the foreseeable future.
Unfortunately, the Commission has become part of that
problem. Earlier this year, the Commission and the Department
of Justice entered into a new memorandum of understanding
regarding how information will be secretly shared between two
agencies.
The Commission was established as an independent executive
agency. As such, the Commission operates outside the normal
procedures of the executive branch and specifically in a
bipartisan manner.
However, the new MOU (memorandum of understanding) brings
the Commission squarely into the fold of executive agencies
that routinely share information amongst themselves.
Most disturbingly, members of the public are not given
notice that their interactions with the FEC are memorialized by
bureaucrats and could form the basis of criminal
investigations.
This is not just a hypothetical situation. Requests by the
Department of Justice for us to stand aside so they can pursue
a target are on the rise.
Since I joined the Commission, there have been abatement
requests related to 33 different matters, and most include
document production requests.
Critically in these cases, the Commission has acquiesced to
the request to not alert those being investigated that the
information has been requested by the Department of Justice.
I believe this new MOU retards the First, Fifth, and Sixth
Amendment rights of citizens who are actively engaged in the
political process. I strongly believe that this information
sharing should be halted and the independence of the FEC should
be reaffirmed.
Second, the Commission is seeing a significant number of
complaints against so-called unknown respondents that a
complainant alleged that some person or entity, the identity of
which is unknown, has done something illegal.
The Commission has received over 30 of these complaints
since 2020, and they are problematic for two reasons.
First, an unknown respondent complaint outsources a
complainant's obligation to file an informative complaint.
Compounding this problem is that such complaints are typically
filed by ideological organizations that see an opportunity to
have the legwork done at the taxpayers' tab without regard to
whether those allegations are true.
Take, for example, the case of Mr. Derek Utley. Mr. Utley
was an ``unknown respondent'' in a matter that ultimately took
four and a half years to dispose of.
What was Mr. Utley's heinous act? He engaged in
constitutionally protected free speech by anonymously
publishing a Facebook page entitled ``Elect Trump 2020.''
How did it happen? Well, a poorly sourced news article
alleged that an unknown person, later identified as Mr. Utley,
spent over $34,000 on shady Facebook ads. In 2017, a complaint
was filed by Common Cause.
In 2019, based solely on the news article, the Commission
found reason to believe that a violation had occurred and
launched an investigation.
The result of the investigation? Mr. Utley had actually
spent $483 on Facebook ads, ads which should be protected
activity under settled precedent by the U.S. Supreme Court.
Mr. Utley's case is the textbook example of how the process
has become the punishment. The ultimate outcome in Mr. Utley's
multiyear harassment by the FEC was that his case was closed--
not closed with an exoneration, not closed with an apology for
the bureaucratic inquiries that he had to withstand or the
amount of money that he expended. It was just unceremoniously
closed.
All the while, the media outlet that misreported the facts,
the group that filed the complaint without doing its own
research, walked away having made Mr. Utley an example of
anyone who dares to share his political views.
In conclusion, I am proud of the bipartisan accomplishments
we have at the FEC. However, at the same time I am fearful of
the continued weaponization of Government against political
participation.
If this weaponization continues, I fear that American
citizens will ultimately chose to forego participating in our
political processes. That would be unfortunate as their
participation is the foundation of our Republic.
Sitting here as an FEC Commissioner, I urge Congress to
halt the secret sharing of information between the FEC and the
Department of Justice and to clarify that only complaints based
on actual evidence are investigated by the Commission.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Trainor follows:]
PREPARED STATEMENT OF JAMES E. TRAINOR III
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you, Commissioner Trainor.
Thank you to all for your opening statements.
We are going to begin questions with Representative Lee and
then alternate between the parties.
Ms. Lee, you are now recognized.
Ms. Lee. Thank you, Mr. Chairman.
Thank you to all of our witnesses for being here today. We
appreciate your testimony and your attendance.
I would like to start, Commissioner Cooksey, with you and a
little bit of background on circumstances in which individuals
have a right to sue the agency for inaction.
In particular, I am interested in the circumstance where
the agency is sued in court, but Commissioners decline to
defend the lawsuit.
Is that something that you have seen occurring?
Mr. Cooksey. Thank you for the question, Representative.
Yes, it is. Under our statute as it is written, when a
private party files a complaint with the Commission, they have
the right to sue the Commission for undue delay if the
Commission does not act on their complaint in a timely manner,
if we do not have a good reason for that. If they win that
lawsuit, they then gain a private right of action to sue the
party they complained against directly for violating campaign
finance law.
To defend the agency in an undue delay suit requires a
Commission vote. It requires four Commissioners to defend the
agency.
It is something that was routinely done up until about 5 or
6 years ago, where there was a period of time in which a number
of Commissioners were engaging in a strategy of not only
refusing to close case files that the Commission had voted on--
in other words, the Commission had considered the merits of the
case, had voted on it, had decided not to go forward, but then
certain Commissioners would refuse to end that case, to
disclose it to the parties, and then, when we were sued for
undue delay, those same Commissioners would block the agency
from defending itself in court. The Government was basically a
no-show in Federal court.
Ms. Lee. What happens when an agency fails to appear and is
essentially a no-show after being sued in Federal court?
Mr. Cooksey. Well, a number of things can happen. There can
be show cause orders. There can be sanctions.
Most typically what has happened is that the court simply
issues a default judgment against the agency, and the party
that sued us goes on and sues with their private right of
action they have gained.
Ms. Lee. How does the entry of a default judgment affect
the FEC, and what happens next?
Mr. Cooksey. Well, it affects us in a number of ways.
One, certainly at the most basic level, we are not allowed
to share what the Commission has done, share how we have acted
on a case, and to defend ourselves. Ultimately, it leads to a
sort of paralysis at the Commission in our ability to get our
work done.
Ms. Lee. Now, as you might be aware, the American
Confidence in Elections Act, which is a piece of legislation
that passed out of our Committee just a few months ago, we
require a unanimous vote of the Commissioners in order to
decline to defend the agency in court.
Do you believe this would be a positive change?
Mr. Cooksey. Absolutely. I would strongly encourage
Congress to change the statute that governs how the agency
defends itself. I think it is, frankly, a scandal for the
Federal Government to not show up in Federal court to defend
itself.
Ms. Lee. Thank you.
I would also like to touch on something that you mentioned
in your opening statement that I think is important to
highlight. That is, I believe you mentioned the large majority
of your cases are resolved in a bipartisan way.
Could you tell us a little bit more about that?
Mr. Cooksey. Sure.
I think, like many issues, people tend to focus on the
division and to exaggerate it.
If you look at the overall enforcement docket--I think you
mentioned it--if you look at the hundreds of cases we have
closed over the last 3 years, the vast majority of those we
reached some kind of bipartisan agreement.
It may not be unanimous. It may not be the exact same
recommendations that the career staff has made. Nine times out
of ten, if you consider our entire enforcement docket, there
are four Commissioners, meaning at least one Republican and at
least one Democrat, that can agree on some outcome to an
enforcement matter.
Ms. Lee. OK.
I would like to turn now to one thing that you also
highlighted and that we commend you for, is your significant
work to reduce the number of cases, the backlog of cases, that
are pending. Nonetheless, you all are faced with a very large
volume of cases and a very large workload.
Would you speak with us a little bit about how discretion
about which cases to pursue and which cases to close, how that
affects your work, and how that is important to your management
of the overall caseload that you have?
Mr. Cooksey. Absolutely.
Prosecutorial discretion is an important part of our agency
and how we manage our enforcement docket. We, simply put, do
not have the resources to pursue every single complaint for a
number of reasons.
There are situations in which, in our judgment, it is
throwing good money after bad, to put it one way, to pursue
certain kinds of enforcement cases that we do not think are
worth our while relative to other priorities.
The exercise of prosecutorial discretion is an important
feature of how we manage our enforcement docket in order to
essentially maximize the effect we have in enforcing the law.
Ms. Lee. Thank you.
Out of time. Mr. Chairman, I yield back.
Chairman Steil. Thank you very much.
Ranking Member, Mr. Morelle, you are now recognized for 5
minutes.
Mr. Morelle. Thank you, Mr. Chairman.
Thank you again. I apologize, I did get a chance, however,
to look at the written testimony from the Commission, which
observes the agency mission is to protect the integrity of the
Federal campaign finance process by providing transparency and
fairly enforcing and administrating Federal campaign finance
laws. That is from your testimony.
To me, that suggests that the agency strives to treat like
cases alike and enforce the law when enforcement is merited.
I was struck by the focus on fairly enforcing the law in
light of the enforcement information the FEC has provided this
Committee on matters related to the former President, his
committees, or close associates. It appears in these cases the
approach has been overly partisan. I refer to the comments I
made in my opening just a few moments ago.
Commissioners Broussard and Weintraub, you issued a
Statement of Reason in Matter Under Review 7784, Make America
Great Again PAC, et al., that touched upon these concerns.
In that statement, you observed that former President of
the United States Donald Trump has been on a remarkable win
streak before the Commission. After receiving dozens of
complaints for violations of our laws, there have been zero
investigations.
I mentioned this earlier, that of the 56 matters that have
been brought, 26 of them have had the professional staff urge
the Commission to proceed with at least an investigation. Not a
decision on whether to acknowledge either guilt or innocence on
the adjudication, but just on the question of whether to move
forward. Twenty-six out of 26 have been blocked.
How would this, in your estimation, suggest that the
Commission is fulfilling its mission to fairly enforce the law?
I would ask the two authors of that memo if they would like to
comment.
Ms. Weintraub. Thank you for the question.
I think our statement pretty much speaks for itself.
Everyone should be equal before the law. Everyone should be
treated equally by the FEC. There does seem to be a problem
where some people just are not treated the same way as
everybody else.
We went into detail in our statement about a number of what
looked to us to be well-justified complaints that merited an
investigation and could not get four votes in any of them, and
there is, as you know, a long list. We supported the
recommendations of our nonpartisan professional staff.
Ms. Broussard. If I may join in? I join in with what my
colleague said. Thank you for the question.
The particular matter that you are mentioning, in that
instance the allegations were that the Trump committee and a
joint fundraising committee had failed--had misreported the
amount of money. We are talking about $781 million.
The reports had said this was for consulting or photography
or something like that. In actuality there seemed to be
credible outside news sources--The Wall Street Journal I
believe was one of those, The New York Times--that had reported
that the money was actually used to pay the salary payments for
the former President's family members and close associates.
This matter was a reason to believe recommendation by the
nonpartisan staff, and the recommendation was to move forward
with an investigation, not a probable cause finding.
As we all know--well, the people on this aisle know, excuse
me--is that reason to believe is the initial determination
where we decide if we are going to conciliate or to
investigate. This would have been an investigation, merely the
opportunity to look into the information. As the Vice Chair had
mentioned, the end result is that this was dismissed under a
Heckler.
Mr. Morelle. Your statement also identified a similar
matter where the Commission found reason to believe a violation
occurred. The difference in that was it was Senator Clinton and
the DNC, that you decided to pursue the investigation along
with your colleagues.
It suggests that there is a dual standard here. I wonder if
either of you would want to comment on how you feel this
impacts the public confidence in the FEC.
Ms. Broussard. Thank you.
I think that one of the things that is important for this
agency is that we be considered nonpartisan when we are
considering the matters. I understand that there is a ``D'' by
my name, but there is not something like that when we are
looking at a matter.
It is important to note that this recommendation to go
forward in the DNC-Hillary Clinton matter that you mentioned
was a recommendation by a nonpartisan staff. They also made an
analogy inside of that report that they found the circumstances
quite similar to the previous one that you mentioned regarding
the former President.
In my consideration, I did vote to find reason to believe
for that one. I felt that it was analogous in the facts and the
law.
Thank you.
Mr. Morelle. Thank you.
I am sorry that we do not have more time. I would suggest
we should bring the partisan--the nonpartisan professional
staff in to talk about some of these at a future hearing. I
would urge the chair to consider that.
Before I yield, Mr. Chairman, I seek unanimous consent to
enter the following into the record: the Committee on House
Administration's July 18th, 2022, May 24th, 2023, August 28th
of 2023 oversight letters to the FEC and the FEC's
corresponding responses and attachments.
I, again, want to extend my sincere thanks to the
professional staff at the FEC for their quick and thorough work
responding to the Committee's questions.
Chairman Steil. Without objection.
[The letters and responses referred to follow:]
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Mr. Morelle. Thank you. I yield back, Mr. Chair.
Chairman Steil. The gentleman yields back.
Mrs. Bice is recognized for 5 minutes.
Mrs. Bice. Thank you, Mr. Chairman.
Thank you for the witnesses for being with us this morning.
Today is the first time in 12 years the Committee on House
Administration has held an oversight hearing with the Federal
Election Commission. It is vital that the FEC remain
nonpartisan and continue to work together to ensure integrity
in America's elections.
To this point, the Democrats' For The People Act introduced
last Congress would reduce the FEC's number of Commissioners
from six to five, making it a partisan Commission.
Since 2021, the Commission has closed 521 matters with an
agreement rate of over 90 percent. Well done.
It is important that we uphold the bipartisan nature of the
FEC because it serves to protect the First Amendment rights of
all Americans.
My first question is to Commissioner Weintraub.
By statute, the Commissioner serves in a seat with a
revolving 6-year term, but may continue to serve past the
term's expiration until he or she is replaced.
You were first recess-appointed to the FEC on December 9th,
2002, and later formally confirmed in 2003. Your term actually
expired in 2007. You have served on the FEC for more than 20
years, 15 since your term expired. The next-most-senior
Commissioner is Commissioner Trainor, who was appointed in
2020.
Commissioner Weintraub, let me ask you, the FEC is not
meant to be a lifetime appointment. Why do you believe you are
still on the Commission?
Ms. Weintraub. Because I have not been replaced.
Mrs. Bice. Do you think we should be looking for a
replacement now?
Ms. Weintraub. I believe that is a decision for the
President.
Mrs. Bice. Are you ready for the President to nominate
someone to replace you?
Ms. Weintraub. That decision is out of my hands. If I am
replaced, I will obviously leave.
The Commission, as we have noted earlier, has been through
several periods where we ran out of Commissioners. We lost the
quorum. I am legally there until I get replaced.
Mrs. Bice. Why do you think that that was that the quorum
was lost?
Ms. Weintraub. Because Commissioners left and were not
replaced.
Mrs. Bice. All right.
For Chair Lindenbaum or Vice Chair Cooksey, let me ask, the
agency's 2024 budget request of $93.5 million represents a
14.5-percent increase from the 2023 appropriation of $81.6
million. As an appropriator, I feel like it is my duty to ask
the question: Can you explain why this increase is needed and
what the agency plans to spend the money on?
Ms. Lindenbaum. Sure. I can get that started.
Thank you for this question. This is one of the critical
things that we are all working on and we have really found
consensus on.
For over a decade, the Commission has not asked for or
received additional funding. We have not kept pace with
inflation. The inspector general's report to you all really
makes this point quite well, that in today's dollars we are at
a huge deficiency even though we have less staff than we had 12
years ago.
Mrs. Bice. How many staff do you have currently?
Ms. Lindenbaum. I believe it is 305 at this moment, and
that is because of recent funding--recent hiring due to our
Fiscal Year of 2023 funding. Before that, we were at our lowest
ever at somewhere around 200-295. That makes a huge difference.
Mrs. Bice. What are the biggest costs to your agency?
Ms. Lindenbaum. I believe it is staff and IT and
infrastructure.
As I said, one of the biggest things that we do is collect
all of those campaign finance reports and publish them.
As somebody who has worked in States across the country on
campaign finance and for clients who cannot trust that when
they file their reports they are actually going to go through
and cannot--you all know what it is like when you are timing
out, ``I am going to file my report at midnight, and it is
going to be OK, it is going to go through.'' Well, I have been
there when you file your report at midnight and it does not go
through.
We need to make sure that when you all file your reports
they are going to go through and the public can view them. At
this point, we have been making do with what we have. We have
critical vulnerabilities. Our staff is cobbling things together
and doing an incredible job of it. We need to improve all of
these systems.
Mrs. Bice. My time is limited. I have about 30 seconds. Let
me follow up with another area that you mentioned already, and
that is IT operations. Can you talk a little bit about the cost
increases on that and what we can do to address it?
Ms. Lindenbaum. Yes.
Mr. Vice Chair?
Mr. Cooksey. Thank you for the question. I have been on the
IT committee since I joined the Commission.
I think, as every Member is aware, the volume of
transactions and contributions that we report is increasing
exponentially over the last few cycles. The IT infrastructure
has not kept pace. We need additional investments in order to
keep our IT at state-of-the-art.
Mrs. Bice. With that, Mr. Chairman, I yield.
Chairman Steil. Thank you very much.
Mrs. Torres is recognized for 5 minutes.
Mrs. Torres. I would like to yield to the Ranking Member
for a few seconds.
Mr. Morelle. Yes. Thank you, Mrs. Torres.
I just wanted to make a point, which has been made over and
over again, of the 500-plus issues before the panel, that the
vast majority, 90 percent, have been agreed to unanimously.
I think it is a little bit like comparing suspension votes
here and unanimous consent motions that are agreed to. Far
often--or often--it is just the routine matters.
I think the thing to remember is, when the professional
staff has nearly 110 times requested investigations, only 12 of
them have we had the ability to move forward on investigations.
I just wanted to make the point that it is easy to look at
the easy things. The question is on the tough things, where the
enforcement really matters, I think we have seen a complete
partisan breakdown.
With that, I yield back to Mrs. Torres. Thank you.
Mrs. Torres. Thank you, Ranking Member and Chairman.
Commissioner Trainor, on August 7th, 2023, the Office of
the Inspector General released a summary of an investigation
into your conduct and allegations of ethics violations related
to your participation on a 2021 event hosted by Denton County
Republican Party where during your tenure as an FEC
Commissioner you were billed as a member of the Trump elections
team.
The investigation also considered your failure to recuse
yourself in matters before the Commission related to former
President Donald Trump.
My question to you is, prior to your appointment as an FEC
Commissioner, you served as legal counsel representing the 2016
Trump campaign, correct?
Mr. Trainor. Thank you for that question, Representative.
The answer is yes.
Mrs. Torres. Thank you.
When did your representation of the Trump campaign cease?
Mr. Trainor. In 2016.
Mrs. Torres. As volunteer or as paid or both?
Mr. Trainor. Well, it was volunteer during the campaign
itself. During the recounts that happened after, it was a paid
position.
Mrs. Torres. As recent as the November election a few years
ago?
Mr. Trainor. Of 2016.
Mrs. Torres. Of 2016. OK.
Do you have any ongoing legal duties to the Trump campaign
as a former client?
Mr. Trainor. No, Representative, I do not. As you probably
know, the statute that governs participation as a Commissioner
on the FEC prohibits us from having any outside employment.
Mrs. Torres. OK.
The case that you cited regarding a Facebook--an accusation
that they had spent--I cannot quote you directly--but some
$30,000 in ads, was that--I am sort of walking away that you
are saying that anonymous has a voting record and has a last
name?
Mr. Trainor. I am not sure that I fully understand your
question. In my written testimony, I did cite to----
Mrs. Torres. No, no, in your verbal testimony you said that
there was a Facebook page created----
Mr. Trainor. Oh, yes.
Mrs. Torres [continuing]. and there was a complaint about
that page posting or spending some 30-plus thousand dollars. It
was an anonymous page. You said that even though it was an
anonymous page, it was OK, and you did not move forward with
the complaint. You cited that as a gross complaint.
Mr. Trainor. The complaint was dismissed five to one by the
Commission. I voted actually not to dismiss the complaint. The
actions of Mr. Utley in that particular case are protected
speech under the Supreme Court's precedent in Talley v.
California and in McIntyre.
Mrs. Torres. I understand that. The Facebook page was not
under his name. It was an anonymous page, correct?
Mr. Trainor. It was entitled ``Elect Trump 2020.''
Mrs. Torres. It did not have his name. Was that ``Election
2020,'' was that a committee that had filed campaign documents
with you?
Mr. Trainor. Not that I am aware of.
Mrs. Torres. I do not understand how that would be
something that would be excused, and I know that you voted the
opposite.
Mr. Trainor. Sure. Just to be clear, Mr. Utley spent $483
not $34,000----
Mrs. Torres. OK.
Mr. Trainor [continuing]. as he was accused of. When you
have an individual who takes $483 of their own money and
decides to engage in political speech----
Mrs. Torres. In an anonymous way.
Mr. Trainor. In an anonymous way, the Supreme Court has
said in two prior cases that that is allowed for the individual
to engage in that level of anonymous speech outside of the
jurisdiction of the Commission.
Mrs. Torres. In other words, the Supreme Court is saying
anonymous does have a voting record?
Mr. Trainor. I am not sure what you mean by voting record,
but, yes, the Supreme Court has sanctioned anonymous political
speech.
Mrs. Torres. Thank you. I appreciate your feedback.
Chairman Steil. The gentleman yields back--the gentlewoman
yields back.
Mr. Loudermilk is recognized for 5 minutes.
Mr. Loudermilk. Well, thank you, Mr. Chairman.
Thank you all for being here today.
Ms. Weintraub, a series of questions for you. Commissioner,
the Freedom of Information Act requests to the Commission
indicates that you cooperated with and assisted the Select
Committee on January 6th back in October 2021. What did you
discuss in your meeting with the Select Committee?
Ms. Weintraub. You know, I do not know if I can fully
recall off the top of my head. I was not expecting to be asked
about that. I can tell you generally that I took a phone call
with some of their staff, and they asked me questions about the
law, areas of the law that I am fairly expert in. Did not get
into any factual analysis; it was really just a discussion of
what the law permits and does not permit. I would be hard
pressed to come up with the details at this time.
Mr. Loudermilk. Was there only one conversation?
Ms. Weintraub. I believe so.
Mr. Loudermilk. OK. Do you know if that was documented
either with you or by the January 6th Committee or the
Commission?
Ms. Weintraub. I do not think that I have any
documentation, and I could not say whether they do.
Mr. Loudermilk. Did you seek advice from other
Commissioners before engaging with the Select Committee or
notify them that--that you were going to do this?
Ms. Weintraub. I do not recall. It is not at all unusual
for people out in the world to reach out to Commissioners and
say: Hey, you are an expert on campaign finance law; can we ask
you a few questions.
Mr. Loudermilk. OK. Did you play any other role or give any
other assistance to the January 6th Committee?
Ms. Weintraub. I do not--I do not believe so, no.
Mr. Loudermilk. OK. Thank you for that.
Commissioner Weintraub, the greatest source of dysfunction
at the FEC in recent years has been caused by the Democratic
Commissioners' deliberate strategy of blocking the closure of
enforcement cases and forcing the agency to default in
litigation. You and your staff have proudly claimed
responsibility for disrupting the FEC's enforcement work in
order to allow left-wing groups to sue the agency and to bypass
the Commission to sue political campaigns and groups.
A Federal court in the case of Heritage Action for America
v. FEC and the Campaign Legal Center v. the Heritage Action for
America has recently ruled that your actions were illegal and
violated the Administrative Procedures Act. Do you still stand
by that strategy?
Ms. Weintraub. Well, I would have to respectfully disagree
with a lot of the characterizations in the question, but the
law empowers me as a Commissioner to vote on whether to close
matters, to dismiss the cases, and I make my decisions in each
case in the way that I think the law and the facts of those
case dictate.
The law also empowers me to vote on whether to defend the
agency in litigation. That is something that Congress put into
the statute and required a four-vote in order--inquired--sorry,
required four votes in order to defend. I think that was
actually a good move, because what it does is it provides some
incentive to the Commission to try and work together to make
sure that they have four votes to support----
Mr. Loudermilk. So----
Ms. Weintraub [continuing]. the substance of what the
Commission is doing, and that way there would be four votes to
defend.
Mr. Loudermilk. Can you explain what the strategy of
blocking, as is read here, means? Are you just refusing to
vote?
Ms. Weintraub. No, no. I--well, there may have been some--I
would have to go back and look at the individual votes. There
may have been some votes that I abstained on and other votes
that I thought that the agency should not send its lawyers to
court to defend the positions of less than half of the
Commission. These did not--none of these involved majority
decisions. By the way, this is a very small handful of cases
that we are talking about. Again, going back to your premise,
this did not largely disrupt the operations of the agency.
Mr. Loudermilk. All right. We will move on. The New York
Times published an article in June 8, 2021, titled ``Democrats'
Improbable New FEC Strategy: More Deadlock Than Ever.''
Commissioner Weintraub, do you stand by its content that your
goal in the agency appears to be to take a Commission widely
seen as dysfunctional and create further deadlock, compelling
Federal courts to fill the breach when it comes to policing
Federal election law?
Ms. Weintraub. Again, I would not agree with that
characterization necessarily, but I do think the courts can
play a constructive role.
Mr. Loudermilk. Did you ever discuss a strategy with
Campaign Legal Center or the other--or other outside parties?
Ms. Weintraub. No.
Mr. Loudermilk. OK. Mr. Chairman, without objection, I
would like to enter into the record three documents: One is the
Legal Newsline ``FOIA records: January 6th House Select
Committee investigator consulted with FEC Commissioners
sparking ethics questions.'' Second is United States District
Court for the District of Columbia memorandum and opinion. The
third is an article from The New York Times, ``Democrats'
Improbable New FEC Strategy: More Deadlock Than Ever.''
Chairman Steil. Without objection, so ordered.
[The documents referred to follow:]
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Mr. Loudermilk. I yield back.
Chairman Steil. The gentleman yields back.
Mr. Kilmer, if you would like to go right away, otherwise
we can go to a Republican and let you collect your thoughts.
Mr. Kilmer is recognized for 5 minutes.
Mr. Kilmer. Thanks, Mr. Chair.
Thanks for being with us. Appreciate you.
I want to take a moment to recognize the FEC's unanimous
decision to advance Public Citizen's petition, which requests a
rulemaking to address the use of generative artificial
intelligence in deceptive campaign advertisements. I was among
the 50 Members of Congress who signed onto a letter led by
Congressman Schiff urging the FEC to reconsider its initial
decision not to seek public comment. I am grateful for your
attention to what I and many of my colleagues perceive is real
threats to our democratic institutions. The further
proliferation of mis- and disinformation impacting the American
electorate.
Already, we have seen the dangerous use of generative AI to
impersonate candidates and public figures. The potential for
deception is a real and current threat. Indeed, in a report,
the U.S. Department of Homeland Security has highlighted this
liability offering an example where synthetic media, such as
deepfakes often created using generative AI, could be employed
to shift the tide of an election or cause civic unrest close to
a voting day.
The increased presence of this kind of media, in
combination with the significant election next year, should
sound alarm bells for everyone. It is my view that the FEC is
the governing body with the authority to conduct oversight of
these challenges involving the use of generative AI in
deceptive campaign ads. I continue to urge action, including
requirements to disclose campaign ads created by generative AI,
as well as a prohibition on deliberatively deceptive content in
campaign ads created by generative AI.
What can you do with your existing authority over
deliberatively deceptive content in campaign ads created by
generative AI, and where do you perceive the gaps in oversight
over the full scope of issues that this technology presents to
campaign ads and election law?
Ms. Lindenbaum. Thank you for that question. Of course,
this is a hot topic that I think we all are discussing, we have
been asked to discuss, and something that we are all
considering along with you all. We have this petition for
rulemaking that has a comment period, and I do not want to
prejudge on what we will or will not say about it. I can tell
you that for me personally the way that I am looking at this
are twofold: One is, do we have the jurisdiction to do anything
about it? Our jurisdiction is quite narrow and just involves
money and campaigns, so there has to be money behind an ad
itself.
Does our misrepresentation--fraudulent misrepresentation
statute cover anything that can be involved here? I used a lot
of examples that I will not waste the time with here, but I
have some good ones that I am happy to talk to you about, that
discuss what would be covered and what would not be covered.
With or without AI, if a candidate or their agent creates an ad
that makes it appear like their opponent made that ad, then
that is already covered, again, with our without AI.
On the policy side, what I am thinking about and that I
hope we are all thinking about is, what is different with AI
compared to how things currently work. Right now, you can chop
up an ad and make it appear like a candidate said anything with
or without AI. What is that difference there, and how does the
misinformation field that we have seen play out for years make
this so much worse? I think those are the policy sides that you
all are thinking about, we are certainly thinking about, and if
asked, we would hope that--well, I would certainly hope that
Congress is considering ways to regulate it.
I have concerns about over inclusive disclaimer
requirements. I think that if we require disclaimer on every
piece of--every ad with AI then it is going to defeat the whole
purpose. We want the viewer to know why it has AI, and we want
it to not become like every ad has a disclaimer. I think it is
important to give that to the viewer. Again, I really hope that
this comment period brings in helpful comments for us and for
you all. We will see where that comes when it closes in 30
days, so thank you.
Mr. Kilmer. OK. Anybody else want to take a swing at that
pitch?
Mr. Cooksey. Thank you, Representative.
I agree with what Chair Lindenbaum just said. I will just
add that obviously private entities are free to impose their
own limits and disclosure requirements on the ads that they
host on their own platforms. I know Google has made
announcements about their own imposed disclosure requirements
on AI, and I expect that a lot of other entities will as well,
and so I think we will be interested to see how that plays out
in practice.
Mr. Kilmer. Thanks. I yield back.
Chairman Steil. The gentleman yields back.
Dr. Murphy is recognized for 5 minutes.
Dr. Murphy. Thank you, Mr. Chairman.
I share my colleague's concerns about AI. In fact, it
petrifies me about how realistic some of these things are. I
was just reading about deepfaking, and good Lord, who knows
what this is going to look like in 20 years. It is up to you
guys to actually be objective and clean and make sure that
things are free and are fair.
Ms. Weintraub, how long have you been serving?
Ms. Weintraub. Since the end of 2002.
Dr. Murphy. That is 21 years, as best of my math, right?
Ms. Weintraub. Almost.
Dr. Murphy. How long is a normal term?
Ms. Weintraub. Six years.
Dr. Murphy. Six years. What is that all about?
Ms. Weintraub. The statute provides that Commissioners,
once they have been confirmed, can serve until they get
replaced. As I said, there has been a problem in the past with
Commissioners leaving and not getting replaced, and then we run
out of Commissioners, and the Commission does not have a quorum
to function.
Dr. Murphy. Well, I say this because there have been some
questions about you serving so long and thoughts about you
being more partisan really than we would like to see on the
FEC, and that is just concerning.
Realistically speaking--and I will ask Mr. Cooksey.
Realistically speaking, how long should Commissioners stay on?
I do not mean to be as divisive when in the Commission, but,
you know, I think let us be--let us be fair, and we do not need
people to stay on forever.
Mr. Cooksey. Thank you for the question, Congressman. I
mean, realistically, Congress set a 6-year term. I think 6
years is a good amount of time. No one voted for me to be on
the Commission. It is not a lifetime appointment. I am not part
of the Federal judiciary, and there is a tendency, I think, to
provide better public service when you have fresher experience
from the private sector from other parts of Government, and so
I think 6 years is a good number.
Dr. Murphy. Well, do not you think kind of a holdover term
creates somewhat of a bad incentive?
Mr. Cooksey. Respectfully, as a former Senate staffer, I
will say that the Senate is always looking for an excuse to
avoid another nomination.
Dr. Murphy. Well, should that Commissioner try to be
proactive in finding a replacement?
Mr. Cooksey. In my opinion, I think a Commissioner should
always be on the lookout for other people who might bring value
to the Commission with service.
Dr. Murphy. I am--you know, I am not a legal person. I am
just a dumb surgeon. I look at--other than maybe the Supreme
Court, you look at judicial candidates who are elected and put
in place to be fair. I believe you guys are judges in a way,
very much so, and so I think it would be the expectation of the
American public that there be turnover to bring in fresh faces,
just like they scream at us for term limits, the same type of
things.
Ms. Weintraub, with all due respect, I hope you will start
working on your replacement.
Ms. Weintraub. Congressman, with all due respect, that is
really the President's job. It is not mine.
Dr. Murphy. Well, maybe you might call him up and suggest
that. I just think, you know, enough is enough. We do not need
career politicians more than career Commissioners, so that
said.
Let me get back a little bit, I guess, to the AI stuff,
which, as I said, is absolutely terrifying. You guys have
submitted public comment. What do you expect to gain from it?
What do you expect to hear? What do you expect to act from it?
Ms. Lindenbaum. I could speak on behalf of myself. I hope
that we get good comments on if we have the authority to
regulate in this area, and if so, which ways will be the most
helpful to the public and to the participants in the political
process. Again, authority, as we discuss it internally, one of
the biggest concerns that keeps getting raised is, does our
statute have--does FICA give us the authority to regulate this
in any way that is different than the way that we regulate
anything else.
Dr. Murphy. I have no doubt in my mind whatsoever that
China will be actively involved; Russia will be actively
involved in trying to manipulate our elections. I mean, the
President of Mexico said he--point-blank, he was planning on
meddling in the--actively participating in the elections of the
United States.
Wouldn't it be great if we just had free and fair elections
and the people of America, all who are eligible to vote, were
able to vote in a very judicious and open manner? I think that
is the aim, regardless of whatever your political proclivities
are to do, so----
Ms. Lindenbaum. I would completely agree with that. Thank
you.
Dr. Murphy. Mr. Trainor, let me just ask you this other
question, because you said a statement earlier that really has
bothered me. Who is--who is the entity, who is the persons, who
is the committee that is pushing for the secret sharing between
the FEC and the DOJ?
Mr. Trainor. The sharing--that is memorandum of
understanding between the Commission and the Department of
Justice to share that information. Most of the time those are
requests that we receive from the Department of Justice, and I
have made it very clear in my comments and my votes that
Congress has addressed when the Commission should have
conversations with the Department of Justice, and that is after
we have completed our investigation. If we find that someone
knowingly and willfully violated the law, we would turn that
information over to the Department of Justice.
What we see happening now is that the Department of Justice
actually circumventing the processes at the FEC and coming in
up front and saying: We want to do a criminal investigation
before you have finished your investigation. They ask us to
stop, turn over our documents, turn over conversations that
campaigns have had with our RAD analysts and give it to them so
that they can begin a criminal investigation before we have
even finished. A lot of times the statute of limitations for us
runs out, and we may or may not get that case back from the
Department of Justice.
Dr. Murphy. This is the absolute weaponization of our
Government.
Mr. Trainor. Without question.
Dr. Murphy. Thank you.
Thank you, Mr. Chairman. I will yield back.
Chairman Steil. The gentleman yields back.
Mr. Carey is recognized for 5 minutes.
Mr. Carey. Thank you, Mr. Chairman.
I thank the Ranking Member as well.
Commissioner Trainor, under our Constitution, who is given
the primary responsibility in administering elections in the
United States? Is it the Federal Government or the States?
Mr. Trainor. The States.
Mr. Carey. This principle is enshrined in Article I,
section 4, commonly referred to as the Election Clause,
correct?
Mr. Trainor. That is correct.
Mr. Carey. Why did our Founding Fathers give States this
primary responsibility?
Mr. Trainor. The Founding Fathers gave that responsibility
to the States because each State is responsible for how they
appoint electors, how Members of Congress are elected.
Ultimately, the membership is decided up here, but at the
individual States, they know best how to manage those
elections.
Mr. Carey. What are the benefits of 50 different State
election systems that a one-size-fits-all Federal system cannot
afford?
Mr. Trainor. Well, there is no benefit to a one-size-fits-
all given all of the complications. Having worked at the
Secretary of State's Office in Texas and managed elections, you
know, Texas has 254 counties. Some people vote on machines.
Some people vote on paper. There are a lot of things that go
into that that Congress could never take into account, and I
think it is why it is important that you all have passed this
ACE Act to kind of reset where the governance of elections
happens.
Mr. Carey. You know, much of the campaign finance law, as I
found out, is very complex and convoluted and involves a lot of
unnecessary paperwork, in my opinion, as well, and, with all
due respect, a lot of expensive lawyers. Can you just briefly
explain why spending money on political activities qualified--
qualifies as protected speech under the First Amendment?
Mr. Trainor. Oh, well, the U.S. Supreme Court has decided
that early on after the Commission was created that the dollars
that are spent equal political speech. Everything that we deal
with at the Commission, because it deals with the campaign
finance issues, touches on that First Amendment aspect.
Mr. Carey. Let me just give one example. Wouldn't we all
recognize the obvious First Amendment problem if Congress
restricts how much money The Washington Post or The New York
Times, The Wall Street Journal could spend?
Mr. Trainor. I am sorry, I did not understand your
question.
Mr. Carey. I mean, would not we--if we recognize the
obvious First Amendment problem, if Congress would somehow
restrict how much money the Washington Post, the New York
Times, or the Wall Street Journal could actually spend?
Mr. Trainor. Oh, very clearly, that would be a violation of
the First Amendment.
Mr. Carey. With this in mind, why is it so difficult for
people to understand the same obvious principle when it is
applied to political campaigns?
Mr. Trainor. Ultimately, it is a function of actually what
Commissioner Dickerson testified to. It is the hodgepodge that
the Federal Election Campaign Act has become, because the
courts have nullified so many provisions within it, that it
actually needs--it is something that needs to be reset and
looked at and have provisions that are still on the books taken
out so that an average citizen could look at that and say: Here
is what I can and cannot do with regard to that.
Ultimately, it comes down to whether or not we--really, the
only thing we need to police is whether or not there is a
corrupting influence of money. That is the only thing that we
need to be policing.
Mr. Carey. All right. Well, I appreciate you, and I
appreciate all of you guys sitting here today and testifying.
With that, Mr. Chairman, I yield back.
Chairman Steil. The gentleman yields back.
Mr. D'Esposito is recognized for 5 minutes.
Mr. D'Esposito. Thank you, Mr. Chairman.
Thank you all for being here this morning and this
afternoon.
Ms. Lindenbaum, a top FEC legislative recommendation at the
American Confidence in Elections Act suggests amending the
foreign national prohibition to include State and local ballot
initiatives, referenda, and recall elections. Many aspects of
Federal law already prohibit foreign nationals from
participating in our elections. Can you briefly summarize how?
Ms. Lindenbaum. Can I--I am sorry to--I--can I briefly
summarize how the law is already----
Mr. D'Esposito. Correct.
Ms. Lindenbaum. Yes. We have a number of different
statutes. FICA completely restricts the ability for foreign
nationals to contribute to any campaign, be it Federal or State
campaigns. It also has limitations that we have regulated
around and issued advisory opinions on on how involved a
foreign national can be in the actual campaign: Can they serve
as campaign manager? Can they serve as a volunteer? Can they
serve as somewhere in between and have decision-making
authority.
Mr. D'Esposito. OK. Is it true that there are loopholes for
State and local ballot initiatives, referendums, and recall
elections?
Ms. Lindenbaum. Yes.
Mr. D'Esposito. OK. Fortunately, in my State, a judge of
New York's State Supreme Court struck down a law passed by the
New York City Council to allow noncitizens to vote in local
elections, which would have allowed an estimated 800,000
noncitizens to vote. Do you believe noncitizens should vote in
our Nation's elections?
Ms. Lindenbaum. I leave that up to the jurisdiction. I
think some jurisdictions it has worked well, but I think, in
local elections, that is their choice.
Mr. D'Esposito. OK. My next questions are for Mr. Cooksey.
There has been a narrative for the last several years that the
FEC does not do it job, it is dysfunctional, it is chaotic. Do
you agree with this narrative, or do you think the agency
actually operates pretty well?
Mr. Cooksey. I absolutely do not agree with that narrative.
I think the agency, despite our bipartisan structure, actually
gets a lot done.
Mr. D'Esposito. I would agree.
Isn't it true that, before 2021, the FEC had vacancies and
had not had full six Commissioners since 2017?
Mr. Cooksey. In 2017 was the first time we lost a
Commissioner without a replacement, and we went down to five.
By 2019, we had lost the four members necessary to do any real
business, and so that was a big struggle for the agency.
Mr. D'Esposito. OK. Isn't it also true that because of
those vacancies, the FEC went almost a half a year without a
quorum?
Mr. Cooksey. That is right. It was about 16 months.
Mr. D'Esposito. OK. Is it true that vacancies led to a
backlog of almost 500 cases?
Mr. Cooksey. That is true.
Mr. D'Esposito. As you probably know, the Democrats' For
the People Act would turn the agency into a five Commissioner
partisan agency. In your opinion, how dangerous is that
proposal?
Mr. Cooksey. I think Congress was extremely wise in
structuring the FEC as a bipartisan, evenly numbered Commission
that requires bipartisan agreement to go forward. It is the
most important structural feature of the agency to prevent it
from engaging in partisan--or politically motivated
investigations.
Mr. D'Esposito. You would agree that it is important for
the FEC to maintain its six Commissioner bipartisan status?
Mr. Cooksey. Absolutely.
Mr. D'Esposito. OK. Well, thank you, all, for being here. I
appreciate all of your work.
Mr. Chairman, I yield back.
Chairman Steil. The gentleman yields back.
I now recognize myself for 5 minutes for the purpose of
questioning our witnesses. One of my goals is to really make
sure we keep out foreign interference in our elections and
actually why I think American elections should be for American
citizens, as was questioned earlier.
If I can, Mr. Cooksey, let me run through a scenario that
is specific to the FEC in this space. Under current law, could
a non-U.S. citizen, a Russian national, a Swiss billionaire,
donate to a U.S.-nonprofit?
Mr. Cooksey. Under current law, foreign nationals are
entitled to make contributions to issue advocacy organizations
or charities.
Chairman Steil. They could donate to a nonprofit--so to
issue advocacy or other areas?
Mr. Cooksey. Correct.
Chairman Steil. Then could that issue advocacy nonprofit
contribute to a super PAC?
Mr. Cooksey. Generally speaking, yes, unless the foreign
national were specifically involved in the decisionmaking. That
would be prohibited. If the organization's acting
independently, yes, they can do that.
Chairman Steil. If they have good attorneys, they could
paper over that, and they could avoid direct relation into the
super-PAC. You are saying that a foreign national could donate
to a 501(c)(4), and the 501(c)(4) could then create almost a
slush fund and transfer that to a super-PAC, and if done
directly to the super-PAC, that would be prevented, right?
Mr. Cooksey. Correct, it would be--it is illegal for
foreign nationals to make contributions to super PACs.
Chairman Steil. Effectively there is a loophole that would
currently allow a foreign national to functionally channel the
money through a 501(c)(4), channel that into a super PAC, and
then run ads that would otherwise be prevented?
Mr. Cooksey. As you have laid it out, that could be done
legally under current law.
Chairman Steil. Do you think that that loophole should be
closed?
Mr. Cooksey. I leave it up to Congress, but I would say
that, generally speaking, the Commission is always concerned
with foreign national influence in our elections. We have made
a number of recommendations to Congress on how to expand our
authorities for removing foreign influence in our elections. I
think that is a very important proposal you are laying out that
Congress should consider that would make a big difference.
Chairman Steil. Do you--let me put it the other way. Do you
think that loopholes should remain open?
Mr. Cooksey. Absolutely not.
Chairman Steil. Does anyone on the Commission think this
loophole should remain open?
I will take that as a no from all of our Commissioners. I
think it is paramount that we close this loophole. It is being
utilized, I think, to allow foreign interference in our
elections. I think we have seen direct evidence of this. It is
one of the reasons that we include language in the ACE Act to
close this loophole.
I think the more we are working to avoid foreign
interference in U.S. elections, the better. I think it is
something that we should take seriously in Congress now that we
have identified loophole, we have seen foreign nationals
utilize this loophole. I think it is absolutely essential that
we work to close this.
Let me shift gears slightly, Mr. Cooksey. I am sticking
with you. We have heard a lot of talk today from my colleagues
about--on the left that the FEC is not doing its job, and it
should be structured or reformed, and I just want to dive into
this slightly. When the FEC got six Commissioners in 2021, the
first time it had full membership since 2017, was there a
backlog of about 500 cases?
Mr. Cooksey. That is right.
Chairman Steil. Since that time, the agency's closed 524
enforcement matters with an agreement rate of 90 percent. Is
that correct?
Mr. Cooksey. I think that is the right way to look at the
statistics, yes.
Chairman Steil. 90 percent agreement in 521 cases; is that
historic? Is that--how does that compare, kind of the history
of that as we--just kind of conceptualize this for us.
Mr. Cooksey. Sure. Actually, over the last years since we
regained the quorum, our agreement rate is going up. If you
look at, for example, the period of 2019 and 2020, and by
``agreement'' I mean cases in which we did not fully divide on
all the merits issues, right; we reached some kind of
bipartisan agreement about the merits. Going back when we had
less than the full six Commissioners, there were disagreement
rates in the high teen percent, in the 20 percent. Year to
date, for this--for Fiscal Year 2023, our disagreement rate is
5 percent. In 95 percent of our cases, over the last 9 months,
we have reached a bipartisan agreement.
Chairman Steil. OK. Thank you. I think that that is helpful
for us to think about.
I just want to come to you real quick, if I can, Ms.
Weintraub. You were having the conversation with Mrs. Bice in--
from the appointment standpoint, you could be reappointed. It
is not you; it is whether or not this appointment process
should be occurring at a more regular basis. Is there anything
restricting the President from reappointing you to your own
seat?
Ms. Weintraub. The law does not permit that.
Chairman Steil. I apologize then. My research on this
reappointment was wrong. You could not be reappointed?
Ms. Weintraub. I do not believe so.
Chairman Steil. That is actually helpful for me. I will
take the note of that.
Have you had conversations with the White House regarding
an appointment to your seat?
Ms. Weintraub. Not recently.
Chairman Steil. When did you have conversations with the
White House regarding an appointment to your seat?
Ms. Weintraub. Intermittently over the last 20 years.
Chairman Steil. Intermittently, if you had--well, maybe we
will go through administrations. Have you had it with any
conversations with the Biden administration?
Ms. Weintraub. I believe so, but I would rather not go into
the details.
Chairman Steil. Well, I think it is somewhat relevant. I
mean, it is a seat that has a 6-year term that is--you have
remained in for a period of time. You have had intermittent
conversations over the course of the last, I would assume, a
handful of administrations, but most recently the Biden
administration. Biden is currently the President. The Senate is
in Democratic hands under Schumer. It is a Democratic seat that
you sit in. You are unwilling to comment on the time or place
of any conversations you have had with the administration
regarding an appointment to your seat?
Ms. Weintraub. I do not think I should comment on any
conversations I have had with the White House.
Chairman Steil. Why do you think you should not?
Ms. Weintraub. Because I do not think that was their
expectation when they talked to me that I would be disclosing
it in a public setting.
Chairman Steil. OK. You have had private conversations with
the White House that you do not want to disclose relating to an
appointment to your seat? Is that a fair description of it?
Ms. Weintraub. I would amend that to say a conversation.
Chairman Steil. You have had a conversation--you have had
intermittent conversations with administrations. You have had a
conversation with the Biden administration----
Ms. Weintraub. That I can recall, yes.
Chairman Steil [continuing]. or someone in the Biden
administration that you are--you are unwilling to disclose the
time or place or manner of that conversation today?
Ms. Weintraub. That is correct.
Chairman Steil. OK. Have you had conversations with any
U.S. Senator regarding the appointment to your seat?
Ms. Weintraub. Certainly not recently.
Chairman Steil. Not during the course of the Biden
administration, you have no--you have had no conversations with
a United States Senator over the course of the past 2 and a
half to--call it 3 years, since the Biden election in 2020?
Ms. Weintraub. I do not want to make an absolute statement
because I do not want to give you any misinformation, but it is
certainly not a common occurrence in my day.
Chairman Steil. You--do you have a recollection of that? I
mean, I want to--I just want to be careful here. We are--that
you have no recollection of it, which that is an honorable
statement if you have no recollection of it, or you have a
recollection of it and you are unwilling to say.
Ms. Weintraub. I cannot recall at the moment.
Chairman Steil. You have no recollection of having a
conversation with a United States Senator about an appointment
to your seat. I would offer that, if I had a--if I had a
conversation with a United States Senator about an appointment,
I would personally probably recall that. You do not have any
recollection of that?
Ms. Weintraub. Not recently, no.
Chairman Steil. Not over the course of the Biden
administration? I just want to define ``recently,'' because
``recently'' can be--it is kind of a fluid term. If it is--I am
not trying to ask you if you had it yesterday. I am saying,
over the course of the Biden administration, have you had a
conversation with a United States Senator regarding an
appointment to the seat that you hold?
Ms. Weintraub. I honestly cannot recall. Nothing springs to
mind.
Chairman Steil. That is honorable. You have--so you then
have no recollection of having a conversation with a United
States Senator over the course of the past, going back to the
election of President Biden in 2020? I just want to make sure I
get--that I am confirming what you are saying.
Ms. Weintraub. Not that I recall.
Chairman Steil. OK. Fair enough.
Let me come to one final point, and I will come back to
you, Ms. Cooksey--Mr. Cooksey, if I can. One thing real quick
here that I want to hit on, and that relates to WinRed and
ActBlue. Driven one by the left, one by the right, fine. Often
I am hearing concerns from--that these donor reports are too
large to be downloaded from the FEC's website. It sounds kind
of technical, but a massive number of contributions, both--to
both sides of the aisle, to political candidates of all stripes
are going through these two vehicles. Is that accurate, that
these files are too large to be downloaded and reviewed by
regular folks that do not have super computers?
Mr. Cooksey. Mr. Chairman, that is accurate. The
exponential increase in the number of transactions that are
being reported, again, through WinRed and ActBlue, makes for
extremely large files that are very difficult to download.
Chairman Steil. What should we do to change that? Or, I
mean, they should be available to people. I assume everyone on
the Commission believes that these should be easily accessible
to people. It is the whole point of our disclosure regime, but
that disclosure regime has a technological hiccup. Is that a
fair assessment?
Mr. Cooksey. Yes.
Chairman Steil. What is blocking you, or is there a Federal
law--how do we work to change that, because I think all of us--
I would assume all of us think that that should be fully
available and accessible in the light of disclosure. I think
that is important. I assume everyone on the--all of the
Commissioners would agree with that. What is blocking that?
What should--what is the hiccup?
Mr. Cooksey. I think I would flag two things: One is the
requirements for how transactions are reported, through conduit
reporting of these WinRed transactions that leads to more
individual contributions being reported and increases the size.
Frankly, the other issue is IT infrastructure for the agency
and the amount of funding that we need to process these reports
on the front to end get them available to the public, which is
itself its own kind of bottleneck.
Chairman Steil. Chairwoman, did you want to comment on
anything about the technological side of how we get these out?
I think this is kind of technical in matter. I am not hyper
partisan.
Ms. Lindenbaum. Yes, I would completely agree with that,
and we also have this open comment period that we hope you will
submit comments to on and anybody else who has struggled to
download those reports or those who are filing those reports.
We have had issues also with those reports when those folks are
filing amendments to their reports, so you can imagine what
that has done for our staff and trying to work with it to make
sure it does not all happen at once.
Again, these are things that we can make significantly
better with increased funding so that we are not cobbling
together old systems. Again, this comment period that
Commissioner Dickerson and I have really launched, we hope will
bring more of this to light.
Chairman Steil. Thank you very much. Let us know how we can
work with you to assist that. I think it is a really important
piece that we work to improve disclosure in this regard.
I thank all of our Commissioners for your willingness to
come, your testimony today. I think it is enlightening. I think
it is an opportunity for all of us to continue to work to
strengthen our disclosure regime and to continue to work to
allow the FEC to deliver on its goals and objectives.
Our panel is now dismissed, and we will begin shortly with
our second panel.
Dr. Murphy. Mr. Chairman?
Chairman Steil. The gentleman is recognized.
Dr. Murphy. I have a statement, motion for the record. In
light of the discussions today with some of the partisanship--
--
Chairman Steil. Tell you what, let us wait just before this
panel is set, and we will do it while we have the mikes.
Inspector General Skinner, we appreciate you being with us
today and look forward to your testimony.
Mr. Skinner brings 10 years of inspector general
experience, including conducting investigations, inspections,
and internal audits. Previously, Mr. Skinner worked as deputy
inspector general for the Office of Naval Research for 6 years.
Pursuant to paragraph B of Committee rule 6, the witness
panel, Mr. Skinner, will please stand and raise your right
hand.
[Witness sworn.]
Chairman Steil. Let the record show that the witness
answered in the affirmative and may be seated.
I now recognize inspector general for 5 minutes for the
purpose of giving an opening statement.
STATEMENT OF CHRISTOPHER SKINNER, INSPECTOR GENERAL, FEDERAL
ELECTION COMMISSION
Mr. Skinner. Thank you, Chairman Steil, Ranking Member
Morelle, and distinguished Members of the Committee. Thank you
for inviting me to appear before you today to testify about the
work of the Office of the Inspector General for the Federal
Election Commission. We appreciate your interest and continued
support for our work.
Our mission is to detect and prevent fraud, waste, and
abuse and other violations of law and to promote economy,
efficiency, and effectiveness in the operations of the FEC. The
OIG (Office of Inspector General) strives to promote
improvements to FEC operations, programs, and initiatives by
independently conducting value audit engagements that include
audits, evaluations, and investigations.
Each year we are required to identify the most serious
management and performance challenges facing the Commission.
Accordingly, I would like to spend a few minutes today to talk
about some of the most significant challenges facing the
Commission that my office has identified and reported.
Next year will mark the 50th anniversary of the FEC.
Needless to say, much has changed in that half century. In
1976, the first Presidential election cycle after the FEC was
established, Federal campaigns raised and spent around $300
million in total. In the 2020 Presidential election cycle, that
number was $14.4 billion.
Much of that increase in campaign fundraising and spending
has occurred since U.S. Supreme Court's 2010 decision Citizens
United v. FEC. That decision significantly altered the legal
landscape regulated by the FEC and led to a rapid growth in
contributions to campaigns and committees, both in total
dollars and in the number of transactions subject to FEC
oversight.
As shown in figure 1, total spending on Federal campaigns
during the Presidential election cycles increased from $6.3
billion in 2012 to approximately $14.4 billion in 2020.
Expenditures during midterm elections increased from $3.6
billion in 2010 to $8.9 billion in 1922. Similarly, the number
of transactions subject to FEC oversight increased more than
twenty-fold, from $28 million to $616 million during that same
period.
Despite those increased obligations, the FEC's resources
have diminished over the same timeframe. As you will see in
figure 2, the Commission's budget has increased by an average
of only 1.6 percent per year. As shown in figure 3, the
agency's annual budget, in fact, has decreased when adjusted
for inflation. The FEC's 2023 budget was approximately 10.6
percent less than its 2010 budget in current dollars.
These limitations have had significant impacts on the
agency. Most notably, it has caused a reduction in the size of
the FEC's workforce. As shown in figure 4, from 2010 to
present, the agency's workforce decreased from 348 to 305
staff.
In summary, the agency has lost 12 percent of its workforce
during the period in which its workload has skyrocketed. These
reductions have been entirely among career agency staff. They
include campaign finance analysts, attorneys, and auditors who
carry out the essential functions of the FEC. One impact is
that the FEC ranked last among comparable agencies in the 2021
survey of employee satisfaction and engagement.
In addition to having worked in the Federal OIG community
for 15 years, I can tell you from experience that agencies are
reluctant to report performance short--challenges. As such, it
is significant that the FEC has done just that and has reported
that performance has been adversely impacted by staff shortages
in that performance targets have been reduced as a result. For
example, the agency reported that it has not met performance
goals to complete audits and process Committee reports on time
due to these staff shortages.
Agency resource limitations affect the implementation of
OIG recommendations. As detailed further in my written
testimony, in our semiannual reports to Congress, the OIG has
addressed 173 hotline inquiries, conducted numerous evaluations
and audits, and issued 25 recommendations in the last 3 years.
Currently, there remain 20 open recommendations. Those
recommendations cover agency operations in programs ranging
from improvements in campaign finance oversight, stronger
regulation of unlawful foreign contributions, and improvements
to agency financial and human capital management.
My staff and I have good working relationships with the
Commission and agency leadership who have been open in their
dialogue with us in response to our recommendations. A common
refrain in that dialogue has been that the agency's limited
resources impede implementation of OIG recommendations. Despite
these challenges, my office will continue to provide oversight
of the FEC to include developing actionable recommendations to
improve agency operations and programs.
In closing, I want to thank Chairman Steil, Ranking Member
Morelle, and Members of the Committee for this opportunity to
testify today. Going forward, the OIG remains committed to
conducting engagements in support of the FEC. I look forward to
continuing to work with my OIG team, the Commission, Members of
Congress, and CIGIE (Council of the Inspectors General on
Integrity and Efficiency) to provide oversight of the FEC on
behalf of the American taxpayers. Our work to date reflects the
exceptional efforts of the OIG team. It is an honor and a
privilege to lead such a talented group of individuals.
Thank you again for this opportunity, and if you have any
questions, I will be happy to address them at this time.
[The prepared statement of Mr. Skinner follows:]
PREPARED STATEMENT OF CHRISTOPHER SKINNER
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much, Inspector General
Skinner.
We will now begin our questions, and I will recognize Mr.
Carey for 5 minutes.
Mr. Carey. Thank you, Mr. Chairman. I also want to thank
the Ranking Member.
Mr. Skinner, General, can you describe your working
relationship with the six Commissioners?
Mr. Skinner. Yes. That is a great question. We have an
excellent working relationship with the Commissioners. We meet
with the Chair and Vice Chair regularly to provide them updates
into all aspects of our work, our audits, inspections,
evaluations, and to some extent just the investigations that we
are working.
We work--we usually meet with them, I would say, on a
quarterly basis, but we are available; when high-priority
issues arise, we let them know and inform them. With agency
senior leadership, we usually meet with them, I would say,
every other week just to kind of get an idea of what is going
on and to provide them input into the work that we are doing.
Mr. Carey. When or if you seek assistance from the
Commissioners in an investigation, other than when a
Commissioner is under investigation, is that assistance that is
given to you? I am guessing from your statement, it is?
Mr. Skinner. From cooperation from the Commission, yes,
generally, it is.
Mr. Carey. OK. When you release reports, are the
Commissioners generally supportive of your work?
Mr. Skinner. They are.
Mr. Carey. Do you feel that you have sufficient
independence from the Commissioners so your work is completed
without interference?
Mr. Skinner. We do.
Mr. Carey. How would you describe the morale at the FEC and
your office in general?
Mr. Skinner. That is a good question. That is something
that my office has started to inquire on. We are currently
looking into how that type of review would look. I can tell
you, from a 2021 survey, the FEC ranked last for employee
satisfaction and engagement. That is definitely something we
noted in our semiannual reports and in our management
challenges document to Congress. That is something that is on
our radar, yes.
Mr. Carey. All right. I appreciate your candor with that.
In your last semiannual report to Congress, you stated you
have addressed 173 hotline inquiries.
Mr. Skinner. Yes.
Mr. Carey. What did some of those inquiries entail?
Mr. Skinner. They range from a variety of issues. I think
we have a chart in the written testimony. Some of the matters
that are referred, they do not belong to the FEC. It is not a
matter within our cognizance. It could be a matter for the FCC.
It could be a matter for a State or local election
jurisdiction. In those cases, we either will refer the matter
or assist the complainant if we know. Sometimes we do not know
who the person is submitting the complaint. We have a multitude
of avenues for people to bring issues to us, including our
hotline portal, and they can do so confidentially or
anonymously.
Mr. Carey. OK.
Mr. Skinner. I would say, those issues vary widely.
Mr. Carey. Is there--are there any steps that you would
request Congress to maybe fix some of the problems that you
have?
Mr. Skinner. I am sorry; can you clarify the question?
Mr. Carey. I mean, are there any steps that you think that
we as a Congress need to help facilitate what you need to do?
Mr. Skinner. For our work, I would say, you know, one of
the most important, you know, I guess, issues in the OIG
community is testimonial subpoena authority. We currently do
not have that. The IG had to call us for documentary--we have
that documentary testimony--or documentary subpoena authority.
We do not have testimonial.
Case in point, recently we had a Commissioner refuse to
speak with us in one of our investigations. We cannot compel
him or her to speak with us, so testimony of subpoena authority
would be great--would greatly help us leverage speaking to
individuals when it comes to administrative investigations and
gathering all the relevant facts of the case.
Mr. Carey. OK. That is great to know.
Again, Mr. Chairman, I--and, Ranking Member, I appreciate
your indulgence for allowing me to go, and I yield back.
Chairman Steil. Thank you very much, Mr. Carey.
The Ranking Member, Mr. Morelle, is recognized for 5
minutes.
Mr. Morelle. Thank you, Mr. Chairman.
Thank you, Inspector General, for being here this morning
and for your service.
This is the last panel. It seemed like an inquisition on
Commissioner Weintraub, who is doing her duty and is serving
under the statute that we have all agreed to and will continue
her service. It did cause me to have some questions about
Commissioners.
I do want to ask you, I want to turn to the topic of an
August 7, 2023, investigative summary detailing your office's
investigation of alleged ethics violations related to
Commissioner Trainor's conduct surrounding his appearance at an
event where he was billed at the event as a member of the Trump
elections team, even though he serves as a Commissioner in the
Federal Election Commission, and about his non-recusal in FEC
matters related to the 2016 Trump campaign. Just to ensure the
record is clear on this point, the investigative summary noted
that Commissioner Trainor did not participate in the
investigation. Is that correct?
Mr. Skinner. That is correct.
Mr. Morelle. When I say he did not participate in, in fact,
he refused to participate, I just want to make that clear. Is
that correct?
Mr. Skinner. We gave him a number of opportunities to speak
with us, and he failed to respond.
Mr. Morelle. Is it true your office made numerous attempts
over the course of several months to schedule an interview with
Commissioner Trainor?
Mr. Skinner. That is correct.
Mr. Morelle. Is it also true that neither Commissioner
Trainor nor his legal counsel responded to your numerous
requests over the course of several months for his cooperation?
Is that correct?
Mr. Skinner. That is correct. I believe his counsel
responded initially, and then we did--failed to hear anything
after that.
Mr. Morelle. You know, I just want to understand, would
you--is it fair to say that his lack of participation impeded
your office's efforts to gather relevant evidence and resulted
in some degree of uncertainty concerning the conclusions of
that investigation?
Mr. Skinner. It did. We would have liked to ask him a few
questions that he did answer today, this morning. We would have
liked to have done that under our own investigation and under
the IG oath.
Mr. Morelle. Not cooperate with the inspector general of
the elections commission. Commenting on the investigation to
the Washington Examiner, Commissioner Trainor, notably
nonresponsive to the OIG but apparently not unresponsive to the
press, especially when it considers it favorable press, said he
was outraged at the enormous waste of time and taxpayer money
that was wasted on this matter.
I want to ask you, General, do you think this matter would
have moved along faster using fewer resources and costing less
money if Commissioner Trainor had simply cooperated with you?
Mr. Skinner. Yes, I do think it would have been. We gave
him a number of opportunities over the course of months to
speak with us. We had a few key questions that could have
helped us easily identify facts of the case and come to our
conclusions.
Mr. Morelle. Gotcha. Thank you.
I just have a couple of minutes, so I will ask you this and
ask you if you can just comment quickly, but, in your March
2023 semiannual report to Congress, you identified five serious
management challenges the FEC must address to ensure property
functioning of the Commission. Can you just please address any
progress you think the management has made in addressing those
challenges since the release of your report, and I would ask
you to do it quickly, if you could.
Mr. Skinner. Yes. I will say, some of the IT modernization
efforts, I know the agency is actively working toward moving
things to the cloud services. When it comes to personnel
resources and human capital management, those things are pretty
much in a stall, I think because the budget issues and some of
the personnel resource constraints that we have identified here
and some of the data.
Mr. Morelle. One of the things that was particularly
concerning to me is the challenges the FEC faces in identifying
and regulating unlawful foreign contributions. It has been
talked about somewhat. In fact, the report, your report states:
The FEC's practice of relying on filer self-certifications
concerning potential foreign contributions pose a national
security risk and provides insufficient oversight of possible
illegal foreign donations. Would--can you please elaborate on
the severity of the issue.
Mr. Skinner. Yes. We----
Mr. Morelle [continuing]. leaving aside any specific
comments on particular bills, just sort of broadly, what do you
think Congress can do to prevent the ongoing practice of
illicit foreign contributions in our campaigns?
Mr. Skinner. I think the Commission could take corrective
action in this case, and that would be to establish internal
controls and internal procedures. On the foreign contribution
issue, I know the report's analysis division has documented
some adjustments, some thresholds in their internal policies,
which would, you know, trigger----
Mr. Morelle. Could I----
Mr. Skinner [continuing]. requests for additional
information, and that has not been approved by the Commission.
Mr. Morelle. I want to just--let me, if I could just
finish, would you elaborate on the severity of the problem or
the issue.
Mr. Skinner. We have not dug--we have not, you know, gone
any deeper into the issue. That was an investigation into a
particular matter. We took the opportunity to look at the
internal controls and some of the root cause analysis there. In
that case, we identified some of the issues when it came to
internal procedures and processes with foreign contributions.
To that--to your question, we have not done any further
research at this time.
Mr. Morelle. Very good. Thank you, sir, for your service,
and I will yield back.
Mr. Skinner. Thank you.
Chairman Steil. Thank you very much.
I now recognize myself for 5 minutes for the purpose of
asking questions. If I can, just begin at the top here, Mr.
Skinner, about how you choose through--what--the matters that
you are investigating. Is it the legitimacy of the complaints,
the author, the subject matter? What drives that?
Mr. Skinner. That is a great question. We have a number of
avenues for issues to be brought forward to our attention, and
that includes the media, that includes our hotline portal, that
includes a number of, you know, complaints. We have a thorough
process internally. If an issue comes to us, the No. 1--like I
said earlier, some issues do not belong in our swim lane. The
No. 1 thing we do is, does this involve an FEC program process
or individual? Does it affect an FEC, you know, conduct? Step
two would be, if so, is there merit to the allegation? If the
allegation is true, does it violate a rule or standard? Those
are just two quick steps that we discuss internally before we
move forward at any preliminary inquiry or investigation.
Chairman Steil. Then, in there, how do you deal with
frivolous complaints? It sounds like they are weeded out at the
front end?
Mr. Skinner. Correct. Yes. We meet weekly with our senior
investigators, and our counsel and deputy IG oversees
everything.
Chairman Steil. If you were to investigate a Commissioner,
when that decision is made, do you have contact with other
Commissioners, and how is that Commissioner notified? Walk me
through how that process would play out.
Mr. Skinner. I think sometimes it just depends on the
matter at the time. We usually would not reach out to a
Commissioner if they are the subject of the case. We like to
interview them at the end once we have all the--interviewed the
relevant witnesses and obtained all the relevant documentation.
It just kind of depends on the case that comes in and what the
issue is that we are looking at. If it is severe, of course, we
will bring it to their attention.
Chairman Steil. The Ranking Member just asked about the
investigation into Commissioner Trainor. What is the bottom
line of that investigation?
Mr. Skinner. The bottom line is, he did not participate, so
we had to go on the relevant facts that we had already
obtained: witness testimony, documentary testimony, things like
that. We had--the standard of proof for us in the
administrative investigation is preponderance of the evidence.
The case led to a not substantiated allegation in that case,
but we would have liked to ask Commissioner Trainor clarify
some of those things.
Chairman Steil. At the end of the day, it was not
substantiated?
Mr. Skinner. We did not have enough information to
substantiate those allegations.
Chairman Steil. There was--at the end of the day, there was
no preponderance of the evidence?
Mr. Skinner. No. That is correct.
Chairman Steil. The report suggests that Commissioner
Trainor's counsel participated, as you said. With Commissioners
or investigators, how do they usually engage with your office?
Mr. Skinner. If we have investigated a Commissioner, is
that the question?
Chairman Steil. You noted that Commissioner Trainor did not
participate in the investigation.
Mr. Skinner. Right.
Chairman Steil. His counsel did not participate in the
investigation.
Mr. Skinner. Correct.
Chairman Steil. OK.
Mr. Skinner. Yes.
Chairman Steil. How does a Commissioner traditionally--I am
assuming there is a contrast in your opinion, then, as to how a
Commissioner would traditionally engage in an investigation
with----
Mr. Skinner. Typically we get cooperation from the
Commission and all the employees of the agency. They respond to
our inquiries, and they respond to our requests for information
and for interviews typically.
Chairman Steil. OK. In your--in the 2024--shifting gears
here. In the 2024 budget request, you asked for about $2
million in the aggregate for operations, $40,000 of that for
training, about $8,000 of that amount to support the counsel of
the inspector generals on integrity and efficiency. How should
Congress look at that request in the context of the
appropriations? You shared some of your numbers earlier.
Mr. Skinner. Yes, for the IG in Fiscal Year 1923, I will be
clear, we had sufficient budget in Fiscal Year 1923 to conduct
the work. A lot of--like the agency, a lot of our funds are
tied up in personnel and benefits, but we do have some mandated
assignments that we have to complete each year, so we asked for
that amount. That would be sufficient enough for us to carry
out our mission.
Chairman Steil. Does your office have a sufficient number
of employees to carry out its mission?
Mr. Skinner. Yes, we do. We have eight employees on staff.
Chairman Steil. It is not a head count issue, your--as it
relates to your investigations?
Mr. Skinner. No head count issues, no resource issues on
our end currently. However, you know, it is a small office. It
would not take much turnover to disrupt operations. We are a
firm believer in cross training initiatives and utilizing the
CIGIE community, the OIG community of 14,000 employees.
Chairman Steil. One thing I have heard about--shifting
gears again. One thing I have heard about as it relates to the
FEC, I have had a couple people mention to me a recurring
question as it relates to X, the internet service formerly
known as Twitter. I do not know how many people yet call it X.
An account, altFEC, much of the public, I think, believes that
it may be a Commissioner or a staff member working in a
Government agency, a Federal employee that runs the account.
Have you ever looked into that matter?
Mr. Skinner. That is something we have not looked into,
but, of course, if there is additional information that your
staff has, we would be happy to hear it.
Chairman Steil. Has it ever been brought to your attention?
Mr. Skinner. It has not been brought to our attention.
Chairman Steil. Not been brought to your attention. Fair
enough. There has been colloquial comments to me that maybe
people are misusing the Government time or Government
resources, but I do not have evidence of that. I just shared
it. I was curious if that is something that had been brought to
your attention.
One final question for you, as it relates to the underlying
powers of your office, as it relates to subpoenaing documents
that you do not have subpoena authority. Is that accurate?
Mr. Skinner. Testimonial subpoena authority, that is
accurate.
Chairman Steil. Would you believe--so that is subpoena
authority, which Congress would need to provide. Would that be
helpful?
Mr. Skinner. I think it would be extremely helpful in our
work at----
Chairman Steil. Why?
Mr. Skinner. I know----
Chairman Steil. I mean--go ahead.
Mr. Skinner. Case in point, we could speak with a
Commissioner. Our role is to obtain the facts, right. We are
fact finders. We cannot propose corrective action. We cannot
take corrective action. We are fact finders. If someone refuses
to speak with us or work with us, that is an issue. We have
some requirements in the IG Act. This is an OIG/CIGIE issue.
This is one of six legislative priorities the IG community is
pursuing with this Congress.
It would help us in a number of ways. It would help us if
an employee retires, and, you know, they do not have an
obligation to speak with us, and they have key facts relevant
to the case, we would like to use testimonial subpoena
authority to get that information. It would greatly increase--
not only help our independence but support the fact-finding
efforts in the work that we do.
Chairman Steil. Other inspectors general have this
authority. Is that correct?
Mr. Skinner. A majority of them do not.
Chairman Steil. Or is this usually not the case?
Mr. Skinner. They do not. There may be--I think there is
one or two special case--special----
Chairman Steil. Special cases that have it where in general
that is not held by an inspector general?
Mr. Skinner. Correct.
Chairman Steil. Thank you very much. I appreciate your
testimony here today, enlightening us as we think and work to
further strengthen and make sure that the FEC is carrying out
its mission. I appreciate you being here today.
I would like to thank all of our witnesses for appearing
before us. It has been incredibly helpful.
Members of the Committee may have some additional questions
for you. We ask that you please respond to those questions in
writing.
Without objection, each Member will have 5 legislative days
to insert additional material into the record or to advise and
extend their remarks.
If there is no further business, I thank the Members for
their participation. I thank the witnesses for their
participation.
Without objection, the Committee stands adjourned.
[Whereupon, at 12:25 p.m., the Committee was adjourned.]
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