In addition to submitting her resignation from the Federal Election Commission this week, Ann Ravel is leaving behind some scathing last words in a report condemning the "dysfunction and deadlock" of the agency she chaired.
"While the FEC's employees strive to fulfill its mission, the Commission itself -- made up of six Commissioners -- is not performing its duty," Ravel wrote. "A bloc of three Commissioners routinely thwarts, obstructs, and delays action on the very campaign finance laws its members were appointed to administer."
No more than three seats on the six-seat commission can by filled by people of the same party, by Congress's design. Any official action, like opening an investigation, requires agreement by a majority of the panel, or four individuals. The report by Ravel, a Democrat, shows the agency's partisan divide widening with the years.
Her office analyzed enforcement matters closed between 2006 and 2016, looking at how the commissioners voted on decisions such as dismissing a case, authorizing an investigation or accepting a settlement agreement. In 2006, 2.9 percent of these votes resulted in 3-3 deadlocks; in 2016, 30 percent of them did.
Increasingly, a matter is closed without action when the FEC cannot find a simple majority: In 2006, none were closed because of a deadlock, but in 2016, about 12.5 percent were, according to Ravel's analysis of FEC data.
Commissioners on the Republican side disagreed with her critique -- unsurprisingly, given the amount of open partisan rancor at the agency. "The data compiled in Commissioner Ravel's report are misleading and do not accurately reflect the state of enforcement decisions at the FEC," Republican Commissioner Lee Goodman wrote OpenSecrets Blog in an email. "I assume that Commissioner Ravel has manipulated her statistics purposely in order to advance her philosophical narrative that First Amendment rights should be severely restricted."
By Goodman's analysis -- which parses the data a different way -- 9.7 percent of closed cases, or 16 out of 164, were dismissed with a 3-3 vote. And in seven of those 16 cases, the Republicans followed the Office of General Counsel's recommendation to dismiss the case, while the rest voted to proceed. So, Republican commissioners voted against what the FEC's lawyers recommended in 5.5 percent of the 164 cases closed.
"Ann has been a determined voice for regulation of First Amendment rights and I wish her well in private life after the commission," Goodman said. "I expect her to remain engaged in the important debate that has animated our time on the commission together."
One of Ravel's main goals during her tenure was to help shine light on who funds our elections. In her report, she highlighted the failure of the FEC to improve transparency of political donors in a handful of cases. Since the Supreme Court's Wisconsin Right to Life v. FEC decision in 2007 allowed more political activity by 501(c) groups, which was hastened by 2010's Citizens United v. FEC, more than $800 million has been spent by dark money groups, or those that don't disclose their donors, according to reports filed with the FEC; that compares to about $117 million spent from 2000 to 2006.
"The Supreme Court in Citizens United emphasized the importance of disclosure so that voters would know who is behind political campaigns and as a means to curb corruption," Ravel wrote. "The Commission has not, however, written any new disclosure rules to account for new avenues of spending that the decision allowed."
The FEC deadlocked on whether the 501(c)(4) political nonprofit, Crossroads GPS, violated the law by not filing as a political committee and reporting its spending and contributions to the agency. Co-founded by GOP political operatives Karl Rove and Ed Gillespie, this conservative dark money behemoth (which now operates a second large politically active nonprofit, One Nation), reported $114 million in political spending to the FEC from 2010 to 2014 -- while also spending heavily during periods when it wasn't required to report, and channeling still more through other allied groups like Americans for Tax Reform. The $79 million of reported spending from liberal dark money groups pales in comparison to the more than $142 million Crossroads has poured into elections, directly and indirectly.
Crossroads GPS has spent so much on TV ads in just a few years that it tops the list of 50 most politically active groups, including super PACs and 527s, that were engaged in elections from 2000 to 2016, according to a report by the Wesleyan Media Project and the Center for Responsive Politics.
The agency faced a similar question with the American Future Fund: Should this political nonprofit be required to register as a political committee? The six commissioners split yet again. Formerly a cog in the Koch machine, the 501(c)(4) spent $12.7 million in independent expenditures in the 2016 cycle, fifth among all dark money groups. (We won't know much more about its spending until November 2017, when its next tax form is due.) In 2014, AFF reported $3.4 million as political expenditures to the IRS, just under the 49 percent cap it must stay under in order to keep its tax status. In recent years, AFF has become something of a (c)(4) for hire, channeling money from other groups into election spending.
Ravel also didn't write about the deadlock on social welfare organization Carolina Rising. The FEC couldn't agree about investigating whether the 501(c)(4) should have disclosed who funded its 2014 political ads. The group spent 97 percent of its 2014 expenditures, or $4.7 million, on ads benefiting Thom Tillis (R-N.C.) in a hard-fought Senate race. Ravel mentioned Tuesday on NPR's Morning Edition that the case should have been open-and-shut, particularly since the head of the group admitted on live TV, from the Tillis victory party, that his group had helped put Tillis in office.
In the cases of Crossroads GPS and Carolina Rising, the FEC's Office of General Counsel said the groups weren't engaging in express advocacy (explicitly endorsing or opposing a candidate) and that there was no requirement for them to report their spending or donors. The agency's lawyers recommended looking further into AFF, but Republican Commissioners Matthew Petersen and Caroline Hunter wrote that as an "issue-advocacy group that only occasionally engaged in express advocacy," an investigation wasn't warranted.
Starting up a nonprofit isn't the only way to keep donors secret: Ravel also addressed complaints that limited liability companies were created as pass-throughs for campaign contributions, obscuring the original donor. Democracy 21 and the Campaign Legal Center alleged these LLCs donated to pro-Mitt Romney and Barack Obama super PACs to evade disclosure. The FEC split along party lines on whether to open an investigation. (For more background on LLC contributions to super PACs, visit our spreadsheet here.)
"Having observed the Commission's actions over the last 10 years, it does seem to me that all the commissioners have gotten to a point where finding a consensus on important matters is almost impossible," said Scott Thomas, former Democratic FEC commissioner, in an email to OpenSecrets Blog. "I think Commissioner Ravel's report overstates the evidence in some of the cases cited, and I think the statements of reasons on the other side sometimes overstate the complications of pursuing enforcement matters. Both sides at the FEC seem to be backed into a corner."
Republicans don't think it's fair for Ravel to criticize their side as being the sole source of deadlock.
"What is striking to me is that she tends to lay the blame exclusively on Republican commissioners for the gridlock and they don't take any responsibility," said Eric Wang, campaign finance attorney and former FEC Republican staffer. "Ann Ravel's eagerness to take her grievances against her colleagues to the press has not been helpful to the animosity and alleged dysfunction at the FEC."
With Ravel's departure in March, the FEC is left with one Democrat, one Independent who often votes with the Democrats, and three Republicans. President Trump is tasked with nominating a replacement, who must be confirmed by the Senate. The remaining five commissioners are all serving beyond the ends of their terms -- in some cases way beyond.
Political nonprofits investigator Robert Maguire contributed to this post.