At his confirmation hearing last week in the Senate Rules Committee, Texas attorney Trey Trainor’s remarks raised serious questions about whether he should be confirmed to serve on the Federal Election Commission (FEC), a post for which he has been nominated by President Donald Trump.
“The answers that Trey Trainor gave at his confirmation hearing did not allay concerns about his record or his intentions,” said Issue One Executive Director Meredith McGehee. “Trey Trainor’s rosy assessment of the FEC is not grounded in reality. Senators from both parties should have serious doubts about Trey Trainor’s ability to be the effective campaign finance cop the American people need. Surely President Trump can find other qualified Republicans who will prioritize enforcing both the spirit and the letter of law.”
Here are five exchanges from Trainor’s confirmation hearing last week that illustrate how he is out of touch with the FEC and the major campaign finance issues facing the country.
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- Trainor professed a belief that the FEC is currently doing a good job enforcing the law. It’s not.
What Trainor said: “The agency is, in fact, enforcing the law,” Trainor said in response to a question from Senate Majority Leader Mitch McConnell (R-KY).
Reality: For years, the FEC has regularly deadlocked on cases, with one bloc of commissioners raising concerns about serious violations and another bloc taking a hands-off approach to the enforcement of rules that are on the books.
Even before the FEC lost its quorum six months ago, the agency wasn’t able to properly enforce campaign finance laws. For instance, dark money groups and super PACs, which are legally required to be independent from candidates, have regularly flouted the rules and systematically coordinated with their preferred candidates, as Issue One detailed earlier this year. Yet the FEC has not punished anyone for illegal coordination since the Supreme Court’s Citizens United decision in 2010 ushered in the era of big-money outside groups.
As Issue One detailed in our “Busted & Broke” report last year, the FEC has struggled with a stagnant budget and vacancies at every level, and it saw a nearly six-fold decline in fines between 2006 and 2018.
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- Trainor suggested that dark money groups are routinely disclosing their donors to the FEC. They are not.
What Trainor said: “What we know from litigation that is currently pending is that organizations that spend money now have to disclose their donors … As it sits currently there is a disclosure regime in place for donors to nonprofit organizations that may engage in independent expenditures,” Trainor said in response to a question from Sen. Tom Udall (D-NM).
Reality: Since the Supreme Court’s Citizens United decision in 2010, roughly $1 billion has been spent in elections by dark money groups. Only a small fraction of the donors behind this spending has been disclosed.
While there was a recent court decision requiring nonprofit groups that spend over $250 on “independent expenditures” — i.e., political ads that expressly advocate for the election or defeat of federal candidates — to report their donors, groups that would seemingly fall under this category have routinely avoided disclosing their donors, and the FEC has failed to further enhance its transparency rules.
Moreover, as an election law attorney in Texas, Trainor previously fought against the Texas Ethics Commission, so that his client, a dark money group, would not have to reveal its donors.
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- Trainor argued that issue ads don’t fall within the purview of the FEC. Some of them do.
What Trainor said: “With regard to issue ads, it doesn’t fall within the purview of the Federal Election Campaign Act, according to the courts. And so it’s very difficult to say that the Commission should, in fact, exercise jurisdiction in that area,” Trainor said in response to a question from Sen. Amy Klobuchar (D-MN).
Reality: While some issue ads don’t fall within the purview of the Federal Election Campaign Act, many issue ads that directly mention federal candidates do.
The Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold after its two chief sponsors in the Senate, defined issue ads that both mention candidates within the run-up to an election and are broadcast to target the relevant electorate as “electioneering communications” — the spending on which is reported to the FEC. While Congress intended for the donors behind such ads to also be reported, the FEC, in 2007, adopted a narrow interpretation of the law that has led to most donors behind dark money groups that make electioneering communications remaining secret. The FEC could choose to revisit this rulemaking at any time.
Notably, in recent years, Congress has debated making clear that issue ads beyond those currently regulated as electioneering communications are also within the FEC’s purview. Lawmakers have proposed both expanding the definition of electioneering communications to include digital ads and also extending the reporting window of electioneering communications — currently set at within 30 days of a primary election or within 60 days of a general election.
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- Trainor seemed to indicate that he’d need to see smoking gun-level evidence to open investigations into alleged campaign finance violations.
What Trainor said: In response to a question from Sen. Amy Klobuchar (D-MN) about what level of evidence would be needed for him to support a vote to initiate investigations into complaints, Trainor said “there has to be credible and valid evidence presented to the Commission that falls squarely within the statutory requirements to show that the statute itself has been violated.”
Reality: With this answer, Trainor is seemingly indicating that he would need to see considerable evidence before voting to advance investigations. When the FEC votes to find a “reason to believe” exists to open an investigation, that does not necessarily mean that a violation has occurred. Rather, passing this threshold allows the FEC to initiate an investigation, which could involve issuing subpoenas to discover information not already in the public record. In recent years, the FEC has frequently failed to investigate serious allegations because commissioners have deadlocked on votes at the reason-to-believe stage.
When pressed by Klobuchar at his confirmation hearing, Trainor declined to provide an example of a case in which the FEC had recently failed to enforce the law. He instead praised the FEC for taking action in a complaint filed against a California-based, Chinese-owned investment holding company whose Chinese board chairman had authorized the company’s $1.3 million in contributions to a pro-Jeb Bush super PAC during the 2016 presidential election. Yet the only reason that we know this is because the Chinese businessman admitted that he had directed the contribution in a 2016 interview with The Intercept, which published a story the Campaign Legal Center described as offering “smoking-gun evidence of the violation.” Despite the FEC ultimately issuing a fine, the Campaign Legal Center concluded that this case demonstrates “how broken the system really is” — as well as “how vulnerable it remains to foreign interference” — and it stressed that the case was not “an example of the system working.”
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- Trainor declined to support new transparency rules for digital political ads.
What Trainor said: “With regard to the disclaimer issues in online ads, I know that that is the subject of a rulemaking at the Commission, so I don’t want to sit here today and pre-judge something that I may have to opine on,” Trainor said in response to a question from Sen. Amy Klobuchar (D-MN).
Reality: One reason it is so important for the FEC to craft new transparency rules for digital political ads is to prevent foreign interference in our elections.
Between 2015 and 2017, Facebook ads paid for by Russian agents alone reached an estimated 11.4 million Americans — that’s equivalent to the combined number of votes cast in 2016 in the swing states of Michigan, Minnesota, and Wisconsin. These ads often came from groups with innocuous-sounding names that did not disclose the true source of the ads.
Without new laws designed to prevent foreign influence on social media platforms, there is no guarantee that this won’t happen again. The FEC has been unsuccessfully trying to craft a rulemaking about online political ads since 2011.
Amisa Ratliff contributed to this report.