With each passing day, President Trump’s criminal syndicate looks weaker. Until recently, hoping for defections on the scale we’re seeing now might have seemed like a pipe dream, but it turns out that several of Trump’s former associates do have limits on what they will tolerate (even if it is sometimes puzzling where exactly they draw the line). Unfortunately, while several of these figures have been able to provide valuable testimony, none have had the power to hold Trump accountable directly. And conveniently, Trump has incapacitated those corners of the administration, like the Federal Election Commission (FEC) — which currently lacks a quorum and therefore cannot function — that are outside of his direct influence and therefore would have the power to hold him to account in the event of partisan defections.
But while Trump’s installation of lackeys like William Barr has been the subject of considerable outrage, his perhaps equally consequential efforts to cripple agencies like the FEC have been allowed to proceed almost without rebuke. Senate Democrats have been been both silent and passive in the face of these attacks. As lawmakers set out to hold this President accountable through impeachment, they must also develop a strategy to resist Trump’s assaults on the administrative state.
Trump has sustained numerous betrayals this week but perhaps his most important surrogate, William Barr, remains as loyal as ever. Barr continues to faithfully parry blows for this president, shielding him from even an iota of accountability for his actions. We learned of yet another way earlier this month. Thanks to Senator Amy Klobuchar’s oversight efforts, we now know that the DOJ’s contributions to the coverup go beyond Attorney General Barr’s refusal to recuse or his team’s dubious decision not to open a criminal investigation on the basis of the whistleblower’s complaint. Under a memorandum of understanding (MOU), the DOJ was required to refer the complaint to the FEC. According to FEC Chair, Ellen Weintraub, who was responding to Sen. Klobuchar’s inquiry, the Department failed to do so.
Barr has demonstrated that he lacks any scruples, especially when it comes to hiding this President’s criminality, so this additional layer in the coverup is likely unsurprising. Had the FEC received the whistleblower’s complaint, it could have opened a civil investigation, which would have made the matter public.
At least, in theory they could. In reality, the FEC lacks a quorum, so the whistleblower complaint would have sat untouched, out of public view for the foreseeable future. It’s not, of course, just a matter of luck that the FEC is incapacitated. Trump and his loyal minion Senate Majority Leader Mitch McConnell have helped to ensure that it be out of commission. The ongoing muzzling of the Commission should be understood to be as obstructive as Trump’s effort to install loyal lackeys like Barr throughout his executive branch. And we should fear that the implications of an entirely sidelined FEC could be greater in 2020 than the scandalous behavior we have already learned about from the media.
The Federal Election Commission is an independent federal agency made up of six commissioners, no more than three of whom can be from the same party. While the president nominates the commissioners he cannot fire them except “for cause,” leaving the agency as a whole well-removed from his control.
Unable to swap commissioners at will, Trump has pursued a different tack: destroy the agency altogether by starving it of commissioners. When Trump took office, six of the seats on the FEC were filled, although four commissioners were serving expired terms. At the time, those terms had expired anywhere from four to ten years prior, reflecting McConnell’s longstanding aversion to election law. Trump, however, put forward zero nominations to replace the long-languishing commissioners. By spring of 2018, two commissioners had departed and only four remained, all serving expired terms. Finally, at the start of this year, Trump nominated Republican James Trainor to replace Matthew Petersen, one of the four long-since expired sitting commissioners. That nomination was still pending, however, when Petersen departed in August, bringing the commissioner total to three, one short of a quorum. Until a fourth commissioner is confirmed, the FEC cannot hold meetings, open investigations, or levy fines.
McConnell preventing the single pending nominee’s confirmation is yet another way he is protecting Trump from consequences of any kind. If he supported a functioning election watchdog he would have nominated new Commissioners upon taking office. Trump and McConnell could have ensured a functioning FEC, and given Trump’s repeated violation of election law, their failure to do so hardly seems a coincidence.
Now, anyone who follows the FEC closely will likely be questioning whether having a full slate of commissioners would have really mattered. It is true that loss of a quorum has not historically been the only obstacle to action by this flawed agency. The commission’s evenly split partisan structure, requirement that at least four commissioners agree to an action, and McConnell’s history of installing anti-regulatoryzealots for Republican slots, has led to gridlock in the past. Thus it’s possible that a fully-staffed commission would have done nothing with the whistleblower’s complaint.
It is not, however, a given. While unlikely, a conscience could have struck one (or more) of the Republican commissioners who might have defected to open an investigation. It is not unheard of at these bipartisan commissions. Last month, for example, the outgoing Republican chair of the Consumer Product Safety Commission (CPSC), Ann Marie Buerkle, voted for a Democratic commissioner to replace her as acting chair. Elsewhere, chair of the Securities and Exchange Commission, Jay Clayton, has periodically voted with the commission’s Democrats. And indeed, various Trump appointees have found the facts with respect to “Ukraine-gate” intolerable, including a Trump appointed Inspector General and Ambassador. Even the historically abominable John Bolton can occasionally push back on apparent criminality.
In other words, there are crazier ideas than that a Republican FEC commissioner, confronted with damning evidence of Trump’s efforts to solicit foreign interference in our elections, would decide to take action. Without a quorum, however, there is no such possibility. Trump may be impulsive, but sometimes he is ahead of the game!
Unfortunately, amid concerted attacks, Senate Democrats appear to have wholly written off the possibility that these agencies function as designed. While they are undoubtedly limited in power, they are not powerless. Democrats can increase the political and reputational costs of “Moscow Mitch’s” actions. Most significantly, they can withhold votes for government spending bills until we have an empowered election watchdog installed for 2020, as funding expires on November 21.
Or, you know, Democrats can sit idly by as Trump and McConnell scheme at how to take advantage of the FEC’s sidelining during next year’s elections. Choices!
We acknowledge that protracted vacancies at the FEC understandably get lost amidst some of Trump’s noisier authoritarian effort. As each day’s headlines demonstrate, however, Trump undermines bastions of independence in the executive branch strategically. Lawmakers owe it to our democracy to resist Trump’s efforts to achieve impunity by all available legal means.
This first appeared on the CEPR blog.