If successful, the gambit could have far-reaching implications for future campaigns and for pending F.E.C. complaints from the 2020 election, like one that accused former President Donald J. Trump\u2019s campaign of laundering hundreds of millions of dollars through limited liability companies to conceal whom his campaign was ultimately paying.<\/p>\n
The chief architect behind the strategy is Ellen L. Weintraub, a Democratic F.E.C. commissioner since 2002, who described it as something of a last-ditch effort after years of watching enforcement actions become sidelined in 3-3 split decisions. \u201cI\u2019m using the small amount of leverage that I have,\u201d she said. \u201cIt\u2019s not a lot.\u201d<\/p>\n
Here is what has been happening behind closed doors, according to people familiar with the commission\u2019s private executive sessions: First, the Democrats are declining to formally close some cases after the Republicans vote against enforcement. That leaves investigations officially sealed in secrecy and legal limbo. Then the Democrats are blocking the F.E.C. from defending itself in court when advocates sue the commission for failing to do its job.<\/p>\n
Lee E. Goodman, a Republican former F.E.C. chairman who stepped down in 2018, said the tactic amounted to \u201csandbagging federal judges\u201d by making them believe deadlocked cases are unresolved. <\/strong>\u201cWhile we can admire it in its creativity, it fundamentally rests on a dishonesty,\u201d he said.<\/p>\n The combination of moves takes advantage of existing provisions in campaign law to essentially open the door for outside advocacy groups to directly sue campaigns in federal court. In fact, it is already happening, including in one case involving a group that spent money supporting Senator Joni Ernst of Iowa and that is accused of improperly existing as a nonprofit to shield its donors from public disclosure.<\/p>\n \u201cIf I don\u2019t believe the case ought to be dismissed, why would I vote to dismiss?\u201d Ms. Weintraub said of leaving cases pending. \u201cI\u2019m just trying to get the law enforced.\u201d<\/p>\n The Republican commissioners are livid. Commissioner Sean J. Cooksey has warned his Democratic colleagues that they are going down \u201ca very, very dark road\u201d and revealed in a recent memo that there are now 13 such unclosed cases, calling them \u201czombie matters \u2014 dead but unable to be laid to rest.\u201d Commissioner Trey Trainor said in an interview that the Democrats were \u201cpoisoning the well\u201d at the agency with a tactic that he said was \u201can abuse of the process.\u201d<\/p>\n \u201cThey are on the losing end of the 3-3 votes, and they think that by concealing the information from the courts, they\u2019ll get a different ruling,\u201d Mr. Trainor said.<\/p>\n Ms. Weintraub said: \u201cI didn\u2019t bust the norms of the agency. The other side did.\u201d<\/p>\n The escalating episode of procedural warfare comes as Congress is actively reconsidering the structure of the F.E.C. itself, which last year went for a long stretch without having enough members for a quorum. Democrats pushed sweeping election legislation through the House this year, but the bill has stalled in the Senate. Senator Mitch McConnell of Kentucky, the Republican leader, has made loosening campaign finance rules a priority in his career, and the legislation lacks unanimous support from Democratic senators.<\/p>\n Broadly, Republicans see the spending of money in politics as protected free speech, and their hands-off approach to regulations has largely benefited from the F.E.C.\u2019s deadlocked status quo. Some advocates of stricter enforcement hoped a new dynamic could spur a reconsideration of the commission\u2019s current structure. \u201cIf they break it so much that federal courts are intervening, that would seemingly be an intolerable situation to Mitch McConnell,\u201d Mr. Noti said.<\/p>\n Campaign operatives have for years operated under the assumptions that the F.E.C. would be unlikely to crack down on anything but the most egregious violations and that, in the rare cases it does, the fines imposed would amount to only a nuisance.<\/p>\n \u201cIt was open season\u201d for politicians, said Ann Ravel, a Democrat who served on the commission from 2013 to 2017, \u201cbecause they knew the F.E.C. was never going to enforce anything.\u201d<\/p>\n But the new maneuver drastically accelerates and smooths the way for outside groups to pursue campaign finance challenges in the federal courts \u2014 a far less predictable and partisan place.<\/p>\n Instead of waiting for years for the commission to deadlock, and then filing long-shot lawsuits to appeal the F.E.C.\u2019s split decision, the law allows advocates to sue the commission far sooner for defaulting in its basic duties. Then, because the agency isn\u2019t defending itself in those lawsuits, groups have a mostly clear path to sue candidates and campaigns directly.<\/p>\n \u201cWe\u2019re abrogating our authority to the courts,\u201d lamented Mr. Trainor, a Republican commissioner who was appointed last year.<\/p>\n Which, for the Democrats, is precisely the point. \u201cIt is not like I think the courts are automatically going to come to the same decision I would come to,\u201d Ms. Weintraub said. \u201cBut I think it\u2019s got a better shot.\u201d<\/p>\n The tactic will work only as long as all three commissioners in the Democratic bloc agree not to close an investigation and not to defend the F.E.C. in court on a particular case. Of the three, only Ms. Weintraub would agree to an interview. The other Democratic-aligned commissioners are Shana M. Broussard, who is the current chair and was appointed last year, and Steven T. Walther, who was appointed in 2006 and who F.E.C. insiders say has been largely checked out of the day-to-day functioning of the agency.<\/p>\n Some of the sharpest critics of the F.E.C.\u2019s dysfunction described the Democratic tactic as something akin to a least bad option.<\/p>\n \u201cCampaign finance laws are routinely ignored and corruption is rampant,\u201d said Stuart McPhail, senior litigation counsel at Citizens for Responsibility and Ethics in Washington, which regularly files F.E.C. complaints. \u201cThis path is the best in a broken system.\u201d<\/p>\n It is not just a theoretical debate about tactics; some campaign finance cases are already playing out in court. In one current case, lawyers for a nonprofit, Iowa Values, that was accused of failing to register as a political committee are seeking to have the lawsuit against the group dismissed, accusing some F.E.C. commissioners in a memo of \u201ctaking their marbles home when they lose\u201d and not closing cases.<\/p>\n There is another important, if obscure, legal factor in play. Currently, the federal courts give almost total deference to the F.E.C. when it decides not to pursue cases \u2014 even in the event of a 3-3 split \u2014 if commissioners cite \u201cprosecutorial discretion\u201d in their reasoning. Such cases are, more or less, not eligible for legal appeals.<\/p>\n \u201cAll the Republican commissioners need to do is include the magic words \u2018prosecutorial discretion\u2019 and a court will then decline to review the action,\u201d said Paul S. Ryan, vice president for litigation at Common Cause, who has regularly filed F.E.C. complaints.<\/p>\n Indeed, Republican commissioners recently deployed that exact phrase \u2014 twice \u2014 in dismissing an investigation into whether Mr. Trump violated election laws with the payment of $130,000 to the pornographic actress Stormy Daniels in 2016 to keep her from publicly discussing her relationship with him.<\/p>\n The twist in the raft of unclosed cases is that they remain formally under active investigation and are thus confidential, meaning that Republican commissioners are unable to tell the courts what has happened and why. In other words, they can\u2019t cite their own \u201cprosecutorial discretion.\u201d<\/p>\n \u201cWe can\u2019t even tell the court under seal that we\u2019ve handled a particular case,\u201d Mr. Trainor said, calling the Democratic maneuver \u201ccompletely unethical.\u201d \u201cIn all of the cases where we\u2019re not showing up, the judges are getting a one-sided story.\u201d<\/p>\n Ms. Weintraub said she hoped that leaving cases open would spur compromise, however unlikely that seems. \u201cI\u2019m hoping that my colleagues aren\u2019t going to be quite so obstinate,\u201d she said. \u201cMaybe this provides some incentive for us to go back to the drawing table.\u201d<\/p>\n![](\"https:\/\/static01.nyt.com\/images\/2021\/06\/08\/us\/politics\/08dems-fec2\/merlin_187613583_703be58f-9683-4931-9cfe-90d2293f0c1d-articleLarge.jpg\")
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