BG Advisor Note | "The Future of the FEC" by Andy Cates

The Future of the FEC

By: Andy Cates 

NOTE: Reposted with author's permission from Texas Ethics Law (LINK)

The past two weeks have seen a flurry of activity relating to campaign ethics - from Russian-backed Facebook ads to FEC appointments. But what may seem like a flash in the pan crisis or announcement today will likely have a lasting impact on the future of the Federal Election Commission and the transparency of political campaigns for decades to come.

Let's first look at the nomination by President Trump of Trey Trainor from Austin to fill a seat on the Federal Election Commission. Trainor has played a role in the Texas Republican Party and in the Trump administration, but he is perhaps most notably (in these circles at least) known as one of the lead attorneys for Empower Texans and Michael Quinn Sullivan.

Trainor, on behalf of Empower and MQS, has sued the Texas Ethics Commission a number of times to challenge everything from the lobby registration requirements to PAC reporting requirements.

I want to be clear that I do not begrudge any attorney for vigorously defending and advocating on behalf of their clients. In that respect, I think that Trainor is above reproach. He does everything within his power to aggressively advocate for his clients.

That said, I also believe that the arguments that Mr. Trainor makes for his clients are at least partially sincerely held beliefs that he himself espouses and will carry on with him through his future endeavors. 

If Trainor is approved for appointment to sit on the FEC, I have little doubt that these same beliefs will make their way to the dais and influence the direction of the FEC into the future. I see a potential for Trainor's arguments on First Amendment privilege overpowering lobby registration requirements and transparency of political contributors bleeding into FEC rulemaking in the near future if he is indeed appointed.

The natural result of such rulemaking would be protracted battles over generally settled case law and new federal lawsuits that will take years, if not decades, to resolve. 

Next, Facebook ads being purchased by Russian-backed groups. Regardless of the messages the ads portrayed, I think we can all agree that we were dismayed to see that Russian influences came to bear on our political process. That it happened at all is scary, but that it happened on a mostly unregulated social network is possibly even more scary.

Why? Because now as everyone is reporting (here's just one from Forbes), Facebook is turning over the proof to a Congress that is calling for regulation & reform.

Mark Zuckerberg is flat out scrambling to get on top of this, as is evident by his video explanation of the new remedial measures he is implementing on the network. But it very well may be too little too late.

Congressional members are already calling for regulation of political speech on social media platforms much like there are for political advertisements on television, radio, and in print. This is a new frontier and one in which most people are loathe to accept regulation. So why would anyone in the general public be okay with it?

Much like when a child first sees their mom or dad get hurt for the first time and realize that they aren't (and never were) invincible and omnipotent, we've just been presented with evidence of major flaws in the armor of our political system. And it's terrifying.

If Facebook can't manage this crisis away quickly, they are likely going to be the final straw that pushes Congress to act. Congressional action could mean either attacking this problem with a shotgun or with scalpel, but no matter how they act, it's going to hurt.

And very likely, the ultimate job of setting the parameters for regulation and enforcing them will fall to the FEC (probably in conjunction with the FCC). They would be charged with enacting and enforcing regulations on political speech that appear on social media, and ultimately, when those posts or advertisements can and cannot be posted online.

That is a monumental task. Considering the lackluster ability of the FEC to enforce its current rules in recent memory, it's not a task that I would have much faith in them to complete.

Either way, the last ten days may have just changed the face of political disclosure and transparency regulation for the rest of all of our professional lives (at a minimum), and we're just starting to dig into it. It'll be a wild ride.