Democratic presidential candidate Andrew Yang’s “freedom dividend” free money raffle has raised questions of legality, but the watchdog tasked with overseeing campaign finance issues, the Federal Election Commission, is hamstrung.
Even if Yang’s program, which entails giving $1,000 a month for a year to 10 families, actually breaks the law, not much can be done about it, since there is no one to hold his campaign accountable, multiple campaign finance experts told the Washington Examiner.
“I think Andrew Yang is part of a trend of the FEC being dysfunctional and campaigns getting away with things, a general willingness to skirt the law,” former FEC Commissioner Ann Ravel told the Washington Examiner. “Because there will be no consequences for them from the FEC.”
The FEC, an independent bipartisan regulatory agency, lacks the quorum of four commissioners present it needs to fulfill its responsibilities in their entirety. When Vice Chairman Matthew Petersen announced in August that he was resigning from the commission, the agency, which is supposed to have six commissioners, was left with just three.
“We’ll still be taking in reports, we’ll still be processing complaints, we just won’t be doing a lot of the significant matters that the commission does when it needs four votes,” Caroline Hunter, the lone Republican commissioner at the FEC, told the Washington Examiner. “Including: The commission isn’t able to vote on legal questions, it can’t vote on enforcing the law, and can’t engage in rulemakings and start audits.”
Adav Noti, a senior director at the nonpartisan Campaign Legal Center and a former lawyer at the FEC, told the Washington Examiner that if the FEC had its quorum, then the Yang campaign could ask the FEC for an advisory opinion to clarify whether or not the program, which is meant to be a very small-scale version of Yang’s plan to give every U.S. adult a universal basic income in the form of a monthly payment, was legal.
“If they had quorum, he could have asked the FEC to settle it once and for all, but they can’t do that right now,” Noti said. “The more we get into the election cycle, the more we’re going to face this problem.”
Noti added that most federal campaigns want to follow the law and usually reach out to the FEC when they are not sure whether or not their activity breaks campaign finance law.
“This is a particularly bad time for the lack of quorum to occur,” Noti said.
The Yang campaign could have asked the FEC for an advisory opinion before September, when it did have its quorum, but chose not to.
The legality of Yang’s freedom dividend raffle “is an open legal question that campaign finance experts across the board have not needed to consider before,” said Aaron Rodriguez, a spokesman for the watchdog group Citizens for Ethics and Responsibility in Washington. “It would be helpful if we had a fully functioning FEC to help clarify the issue and address other concerns with the upcoming election season.”
Ravel said that the responsibility for the lack of quorum at the FEC “lays at the hands of Sens. McConnell and Schumer in the Senate and President Trump.”
Presidents are tasked with nominating commissioners, who then have to be confirmed by the Senate. Trump nominated one commissioner in September of 2017, but the nominee has yet to be confirmed by the Senate.
The FEC has for a long time had a reputation for partisan dysfunction. Ravel claimed in 2014 that her Republican colleagues fail to enforce campaign finance law. Ravel has in the past cited FEC data that she gathered to claim that there has been a dramatic increase in the number of deadlocked votes on major cases since 2006, a marker of dysfunction and gridlock.
Ravel’s Republican counterpart, Hunter, has pushed back against the idea that the agency is dysfunctional. In a letter sent in May to the Committee on House Administration, the congressional committee that oversees the FEC, Hunter and former commissioner Petersen insinuated that Ravel and other Democrats use “inaccurate or misleading numbers” to “produce tasty sound bites and good theater.”
Hunter and Petersen also claim that “true deadlocks, in which at least four Commissioners cannot agree on a path forward, occur infrequently.”
Hunter may get the opportunity to test her “no deadlock” theory if someone files a complaint to the FEC regarding Yang’s cash giveaway and the FEC, after its quorum is restored, has to decide whether or not his campaign has acted illegally. Based on past patterns of openings and nominations for board seats, it is likely that the FEC again has a quorum sometime before the 2020 elections.
Ravel’s stance is clear.
“Andrew Yang said he had legions of lawyers saying his program was OK — doesn’t matter,” Ravel said. “Legions of lawyers saying something that hasn’t been interpreted before isn’t OK. Although the FEC’s interpretation of using campaign funds for personal use is pretty clear. It’s not allowed.”
