To understand the real threat of Democrats’ “voting rights” bill, consider a little-noticed decision from an underappreciated federal agency. H.R.1 isn’t about reforming elections or protecting voters. It’s about raw power, unleashing Ellen Weintraubs on the world.
Ms. Weintraub is the most partisan member of the Federal Election Commission. For four years she trolled the Trump presidency, egging on the
investigation and spinning accusations that the White House illegally solicited foreign political help. So it was astonishing last week that Ms. Weintraub quietly voted with pro-free-speech GOP commissioners to dismiss a case involving a clear Democratic solicitation of foreign help in the 2016 election.
Such partisan flip-floppery might normally go unnoticed; this is Washington, after all. But it deserves attention, as it perfectly highlights the extraordinary dangers of H.R.1. The left’s express purpose with the bill is to weaponize this sort of behavior—to enable the likes of Ms. Weintraub to punish their political opponents and absolve their friends.
The FEC in theory holds extraordinary power, in that it regulates speech in elections (via campaign-finance law). The protection against partisan abuse of this power is the commission’s structure. Its congressional creators wisely designed a six-person commission, with three members from each party. At least four votes are required for commission action.
Democrats despise the deadlocks. The more they’ve struggled to sell their agenda, the more they’ve turned to trying to strangle their opponents. Democrats have been campaigning for years to restructure the FEC as a partisan regulator. H.R.1 would do that, getting rid of staggered terms and creating a body with only five commissioners—all nominated by the president. There’d be two from each party, while the fifth would be an “independent.” The bill’s procedures virtually guarantee that “independent” would be a pro-regulation, anti-free-speech stalwart who votes with Democrats.
“The FEC would lose any semblance of impartiality and credibility if enforcement decisions were turned over to a 3-2 partisan majority,” says
a Republican former commissioner.
How would this work in practice? Consider Ms. Weintraub. Most FEC commissioners at least attempt to project impartiality. Ms. Weintraub (whose first term expired 14 years ago) instead remade herself in the Trump years as a loud partisan critic. So much so that a fellow commissioner in 2019 publicly scored her for “harming the legitimacy” of the agency.
In June 2019, Ms. Weintraub excoriated
for saying he’d be willing to accept information on an opponent from a foreign government. “Let me make something 100% clear,” read her outraged statement. “Anyone who solicits or accepts foreign assistance risks being on the wrong end of a federal investigation.” She also suggested Mr. Trump committed a crime with his call to the Ukrainian president.
In fact, it’s arguably unconstitutional to claim that information constitutes a “thing of value” or a “contribution” under campaign finance law. The Mueller team debated going after Trump officials on this basis but decided it wouldn’t stick. The Justice Department found Mr. Trump’s call didn’t violate campaign-finance law. And the FEC has taken a narrower view of what counts as a foreign contribution—focusing on gifts of tangible value, including money and loans.
If Ms. Weintraub truly believed her expansive definition, she had her chance with last week’s decision. A Trump ally in 2017 filed a complaint against the Democratic Party and one of its consultants,
accusing them of breaking the law by soliciting the Ukrainian government to make statements damaging to the 2016 Trump campaign. The FEC’s pro-regulation staff, eager to expand the definition, recommended the commission proceed. Two of the commissioners, Democrat
Shana M. Broussard
showed the courage of their regulatory convictions by voting to pursue. The three GOP commissioners held firm to their own constitutional principles and voted to dismiss.
And Ms. Weintraub, that great opponent of foreign solicitation? Her decision when faced with a clear example of what she insisted is a crime? She voted to dismiss—saving the Democratic National Committee. Though she also conjured her own absurd and technical reasons for ending the case—thereby preserving her broader right to apply her “foreign assistance” argument against some future conservative group or candidate. Indeed, Ms. Weintraub has spent months on a new effort to stall procedurally the official closing of cases, the better to revive them at a more opportune time. Say, after the passage of H.R.1.
This FEC case study is only one of hundreds of examples of how H.R.1 is designed to stack the deck against conservative candidates, voters and free-speech advocates. At the very best, it would supercharge a pro-regulation Democratic FEC majority that crushes speech under government diktats. At worst (or best, by Democratic lights) it would empower partisans like Ms. Weintraub to punish and reward behavior selectively.
This is the gory reality behind the left’s lofty rhetoric of “voting reform.” And it’s why Senate Republicans were duty-bound to block the bill this week.
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Appeared in the June 25, 2021, print edition.