Donald Trump’s first addition to the nation’s top election regulator has launched a broadside against anti-corruption groups that, he claims, are trying to advance a left-wing agenda by attempting to spur enforcement of federal election laws.
Trey Trainor, the Federal Election Commission’s newest commissioner and its current chairman, released a blistering statement Wednesday going after a number of those nonprofits by name. “There are several organizations dedicated to limiting the free-speech rights of Americans by changing the nation’s campaign-finance laws,” Trainor wrote. “They seek to change policy not by making the most persuasive case, but by seeking to silence those with whom they disagree by whatever means necessary.”
The 11-page statement was a remarkable broadside not just against the groups themselves, but also against fellow FEC commissioners past and present, whom Trainor accused of conspiring with the transparency organizations he singled out—Citizens for Responsibility and Ethics in Washington, the Campaign Legal Center, Common Cause, and Democracy 21—to undermine the commission and impose ideologically driven restrictions on American free-speech rights.
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The statement tracked with a long-running philosophical divide on the famously dysfunctional commission. But Trainor’s aggressive posture toward both his colleagues and the groups suggests that he will bring a tinge of Trumpian brashness that is rare among the often stoic and esoteric body that regulates federal elections.
“It is incredible that the chair of the agency charged with enforcing federal campaign-finance law is using his platform to declare that ‘enforcing campaign-finance reforms’ and ‘limit[ing] the influence of money in politics’ are both ‘code phrases for limiting free-speech rights,’” wrote Brendan Fischer, the director of federal and FEC reforms at the Campaign Legal Center, in an emailed response to Trainor’s statement. “The FEC’s job is to drain the swamp by enforcing the transparency laws passed by Congress, not to run interference for wealthy special interests who want to secretly buy political influence.”
Trainor was confirmed to the commission in July, nearly two years after Trump first nominated him. His confirmation drew skepticism and scorn from many in the campaign-finance reform community, including some of the same organizations he called out in his statement Wednesday.
Trainor is an election lawyer from Texas who has advised officials in Austin and Washington, including former Defense Secretary James Mattis. His critics during his FEC confirmation process also pointed out that prior to his nomination, Trainor worked for the Trump campaign directly, helping to beat back insurgent anti-Trump forces at the 2016 Republican convention. Trainor has pledged to recuse himself from matters involving Trump’s campaign. But he hasn’t exactly gone out of his way to appear dispassionate. On his Twitter account, he routinely promotes explicit campaign messaging from the president, his political aides, and high-profile supporters. Over the weekend, in one recent example, Trainor retweeted Trump bragging about his recent poll numbers.
Trainor’s statement on Wednesday tracked with years of bickering between the FEC’s Democratic and Republican commissioners over the role that outside groups, including the ones mentioned in the statement, should and do play in effectively enforcing campaign-finance laws—particularly where the commission itself, stymied by internal fissures and structural roadblocks, cannot or will not.
“Perhaps the biggest reason for FEC dysfunction has been commissioners like Trey Trainor who are hostile to the campaign-finance laws they’re responsible for enforcing,” Paul S. Ryan, the vice president of litigation for Common Cause, told PAY DIRT in an emailed response to Trainor’s statement. “Common Cause has had enough of FEC dysfunction. The courts have had enough of FEC dysfunction. And Americans have had enough of FEC dysfunction.”
The central issue in Trainor’s lengthy rebuke of Ryan’s group and others is a provision in federal election laws that allows private actors to sue the FEC in an effort to enforce those laws. If the FEC declines to pursue an investigation of alleged wrongdoing, groups such as Common Cause can—and frequently do—sue the commission in federal court, arguing that the decision is contrary to federal law. If the court agrees, it can order the FEC to reconsider the matter with a focus on the areas of the law that the court says it got wrong.
Trainor’s statement came a few weeks after one such lawsuit prompted a federal court to back significant new political spending disclosure requirements. In 2012, CREW sued the FEC after it declined to force Crossroads GPS, a leading Republican “dark money” nonprofit, to disclose donors that financed a high-dollar political advertising campaign. The case has the potential to dramatically reshape the post-Citizens United campaign-finance landscape by forcing the disclosure of donors to some of the nation’s biggest dark-money groups, and it could end up at the Supreme Court if Crossroads opts to challenge last month’s decision.
CREW’s lawsuit hinged on a single word: “an.” Federal law requires nonprofits such as Crossroads to disclose all donors who give money “for the purpose of furthering an independent expenditure,” or IE, in support of or opposition to a federal political candidate. The FEC has officially interpreted that rule to mean that the law only requires dark-money groups to disclose donors who give money to finance a specific, identified IE. A federal appeals court sided with CREW’s challenge to that interpretation and ruled that the disclosure requirement applies to donors who give money to support IEs generally, not just a specific advertisement or expenditure. The appeals court decision even cited the Oxford English Dictionary definition of the word “an”—which is described as “referring to something not specifically identified… but [instead] treated as a member of a class”—to bolster its case.
That case, like others brought by private actors seeking to spur FEC enforcement, hinged on the specific language of the law, and whether the FEC had properly interpreted and enforced it. But Trainor sees a larger and more pernicious project at work—an effort not just to enforce the law as written, but to effectively rewrite it through the courts. The tactics employed by CREW and others, he wrote on Wednesday, “are akin to accusing someone of driving 60 miles per hour in a 55 MPH zone in an effort to get the speed limit lowered to 40.”
Asked to comment on his statement, CREW largely demurred. “We stand behind each and every action we’ve taken to ensure campaign-finance laws are actually enforced,” Jordan Libowitz, a spokesperson for the group, wrote in an email. “We’re not going to get into an argument with an FEC commissioner in the press.”
Trainor blamed not only CREW and like-minded groups, but fellow FEC commissioners who he said have encouraged and abetted the strategy. “With the help of ideologically aligned Commissioners,” he wrote, “these professional complainants are taking advantage of the Commission’s unique structure and recent loses of a quorum to pursue their strategy to limit speech, subvert the Commission’s prosecutorial role, and allow private actors to make law via the courts.”
FEC Commissioner Ellen Weintraub and the commission’s former vice-chairwoman, Ann Ravel, have embraced the strategy as a way to enforce campaign-finance laws even in cases where the commission itself declines to act—which, in their view, was more often than appropriate. The commission’s Republican members, Weintraub wrote in a 2018 statement on another lawsuit that CREW brought against the FEC, “will eventually find a way to block meaningful enforcement of the law in this and any other dark-money matter that comes before us.”
“My goal here, as always, is to enforce America’s campaign-finance laws fairly and effectively,” Weintraub added. “Placing this matter in CREW’s hands is the best way to achieve that goal.”
It’s that approach that Trainor targeted with his statement on Wednesday. The strategy, he argues, effectively usurps the commission’s legal role as the arbiter and enforcer of federal campaign-finance laws. And in his view, the groups trying to enforce the law are uniformly progressive—meaning that putting enforcement in their hands will disproportionately, and deliberately, harm Republicans.
That view is complicated by the fact that the very groups Trainor identified in his statement have, just recently, sued the commission to enforce campaign-finance laws against Democratic groups as well. But more fundamentally, those groups say, the FEC is simply incapable, for the time being, of enforcing anything at all. The resignation of one of its commissioners in July once again deprived the commission of a four-member quorum required to take any enforcement action.
“For more than a decade, the FEC has been unwilling and incapable of doing its job of enforcing campaign-finance law,” wrote Ryan. “Complaints I filed with the FEC during the 2016 presidential campaign remain pending before the Commission. This is the Commission Trainor is defending!”
