UPDATE: The Senate Rules Committee will hold a business meeting at 10:00AM (Eastern time) on Thursday, December 3, which may include voting on these three nominees to the FEC. A live video stream of the meeting should be available on the Committee’s meeting page.
The Senate Committee on Rules and Administration has announced a hearing on Wednesday, November 18, 2020, to consider three nominees to the Federal Election Commission, the federal agency regulating campaign finance and activity. The hearing should be streamed on the Senate Rules Committee’s website, beginning at 10AM Eastern time.
The FEC should be comprised of six Commissioners, but since July 3 has had only three, two of whom are holdover members whose terms have long since expired and who are ineligible for reappointment. It takes a quorum of at least four commissioners to approve actions by the Commission, so the agency cannot take official positions and has lost court cases as a result. In January, members of a bipartisan group of election and advocacy lawyers, known as the First Tuesday Lunch Group, wrote to the White House and Senate leaders asking that they immediately fill the FEC vacancies.
“The inability to know how the rules apply to particular organizations or people so they can engage in what is the core protected First Amendment activity while complying with their legal obligations — it’s very frustrating,” said Beth Kingsley, a partner at Harmon, Curren, Spielberg & Eisenbeg, LLP, …The Washington Post
One of the FEC nominees is Allen Dickerson, an active member of the First Tuesday Lunch Group of public policy lawyers and advocates, who was nominated last September. The other two nominees are Shana M. Broussard and Sean J. Cooksey, who were both announced in October.
Allen Dickerson is Legal Director of the Institute for Free Speech, where he leads a nationwide First Amendment litigation practice. Previously, he was an Associate with Kirkland & Ellis, LLP. He also serves as Captain in the Judge Advocate General’s Corps, United States Army Reserve. He received his undergraduate degree from Yale College and his J.D. from New York University School of Law.
Shana M. Broussard currently serves as Counsel to FEC Commissioner Steven T. Walther. Before this, Ms. Broussard was an Attorney Advisor at the Internal Revenue Service. While at the FEC, Ms. Broussard received the “Outstanding Performance Award” in 2011 and 2014.
Sean J. Cooksey currently serves as General Counsel to U.S. Senator Josh Hawley of Missouri, advising, inter alia, on election law. He previously served as Deputy Chief Counsel for U.S. Senator Ted Cruz of Texas, a litigation associate at Gibson, Dunn, and a law clerk for Judge Jerry E. Smith of the Fifth Circuit.
As they did in January, members of the First Tuesday Lunch Group sent a letter to the Senate Rules Committee on November 16 urging the Committee and the Senate to act swiftly on these nominations. The latest letter said:
“We represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center. We may find ourselves in adversarial positions in the legal arena. Yet we are united in our commitment to the rule of law and the need for the agency tasked with regulating federal campaign finance laws to function fully and carry out the mission assigned to it by Congress. Today we write as individuals to urge the Senate to move quickly to restore the FEC’s ability to function.”Letter from members of First Tuesday Lunch Group, Nov. 16, 2020
Over the weekend, the “watchdog” organization Accountable.us sent a letter to the Senate Rules Committee Chair Roy Blunt and Ranking Member Amy Klobuchar opposing the confirmation of the three nominees for the FEC. The letter asks the Rules Committee “to stop advancing these ideologically-driven nominations — and the potential nomination of any new FEC commissioner” and was picked up by Salon as “Trump and GOP rush to ‘quietly pack the FEC with partisans’ after election.”
This characterization and others in the letter will likely come as a surprise to Ranking Member Klobuchar who strongly supports the nomination of Shana Broussard, and to the 25 other Senate Democrats who in January urged restoring the FEC quorum. As Sen. Klobuchar noted: “Democrats advanced Ms. Broussard to the White House for consideration more than a year ago.”
And the holdup in the FEC nominations reportedly was not entirely due to the White House but also to intraparty concerns in the Senate. To its credit, the Accountable.us letter does acknowledge obliquely these negotiations when it refers on its second page to “a previously negotiated Republican-Independent pairing” which includes Broussard.
It is possible to express concern about the direction of the FEC without inappropriate and inaccurate characterizations or personal attacks. Meredith McGee, Executive Director of Issue One and not ordinarily reticent in such discussions, for example, issued a statement asking the Committee to avoid “allegiance to ideology” but avoided casting aspersions on any nominee or their backers: “Now is not a time for pro forma confirmation hearings. Every person nominated for Senate-confirmed positions deserves rigorous scrutiny. Putting an allegiance to ideology over an allegiance to faithfully enforcing our nation’s anti-corruption laws will further jeopardize an already dysfunctional agency. When the FEC is broken, the American people lose, and senators should not forget that during next week’s confirmation hearings.”
The FEC is broken, and has been for a long time. It would help the agency if it were able to function, which is why Senators, members of the First Tuesday Lunch Group, and others have been calling for months for the confirmation of new Commissioners. But the tone and misinformation in the Accountable.us letter and echoing media coverage is not the best way to do that.