In the wake of the news that the statute of limitations has run out on two cases of alleged illegal coordination with big-money outside groups in the 2016 presidential race that the Federal Election Commission (FEC) had been investigating, Issue One issued the following statement:
“It’s shameful that the FEC was missing in action for 15 months during the 2020 election cycle, and its failure to act on these two cases of alleged illegal corruption is inexcusable,” said Issue One Executive Director Meredith McGehee. “Because of the FEC’s dysfunction, it has dismissed two cases of alleged illegal coordination during the 2016 presidential race between the campaigns of Republicans John Kasich and Scott Walker and political groups that supported their White House bids. Crucially, these are cases that, before the FEC lost its quorum in 2019, the four then-serving commissioners unanimously agreed should be investigated further.
McGehee continued: “When the FEC fails to serve as an effective cop on the beat, it sends a signal to candidates and political groups that there is little incentive to adhere to the letter or the spirit of our nation’s anti-corruption laws. That should be alarming to Democrats and Republicans alike.”
In 2019, the four commissioners then serving on the Federal Election Commission unanimously agreed that there was reason to believe that both Republican presidential candidate John Kasich, the then-governor of Ohio, and Republican presidential candidate Scott Walker, the then-governor of Wisconsin, had illegally coordinated with political groups supporting their presidential bids. These groups were allowed to accept contributions of unlimited size and prohibited from coordinating with federal candidates. In 2016, presidential candidates were barred from receiving more than $2,700 per donor.
Campaign finance complaints alleged that a political group called New Day for America — which was registered with the FEC as a super PAC and was allowed to accept contributions of unlimited amounts, including from sources such as corporations, which are prohibited from directly donating to federal candidates — illegally paid for some expenses for Kasich as he “tested the waters” of a possible 2016 presidential campaign, including some campaign advertisements that New Day for America and Kasich filmed together prior to him officially entering the presidential race. The FEC’s office of general counsel said these ads appeared to be “coordinated communications,” not expenditures made independently of Kasich’s campaign.
Additional complaints alleged that a political group called Our American Revival — which was registered with the IRS under Sec. 527 of the tax code and was also allowed to accept contributions of unlimited amounts, including from sources such as corporations, which are prohibited from directly donating to federal candidates — illegally paid for some expenses for Walker as he “tested the waters” of a possible 2016 presidential campaign.
The FEC was unable to take enforcement actions in either of these two instances because the five-year statute of limitations expired in both cases in 2020 while the FEC lacked the four-person quorum necessary to conduct official business. Between September 2019 and December 2020, the FEC had a quorum for just one month. There are now six commissioners serving on the FEC and no vacancies.
Enforcement actions by the FEC in cases of alleged illegal coordination between candidates and outside groups are incredibly rare. Since the Supreme Court’s Citizens United decision in 2010 opened the floodgates for unlimited spending in elections by outside groups that are supposed to be independent from their preferred candidates, the FEC has issued just one fine in a case based on allegations of illegal coordination between a campaign and a super PAC, despite numerous examples of groups flouting the law.