Long-standing Republican unity on the Federal Election Commission, especially against liberal efforts to expand rules to punish GOP candidates, appears to be in jeopardy with the arrival of a new member who has stirred controversy by voting with Democrats in a key case.
The political fissure was made public last week when the FEC closed a case involving a pro-Trump political action committee and revealed that Republican Commissioner Allen Dickerson sided with all three Democrats to open the investigation in a 4-1 vote in February.
The case involved Great America PAC, GOP political operative Jesse Benton, and a vague foreign contribution sting run in 2016 by the Telegraph, a British newspaper.
Sean Cooksey, one of three Republican commissioners, said in his statement last Friday that he immediately decided against pursuing the case because it didn’t reach even questionable legal standards for violations of election and finance laws.
Namely, he said, there was no “solicitation” of a contribution because the reporters conducting the sting were offering $2 million, and there was no foreign national involved because it was all a setup.
“I opposed finding reason to believe any violation occurred in this matter, just as I opposed proceeding with every subsequent stage of the investigation, because of the egregious factual and legal deficiencies in the case. First, even if the evidence were credible, the commission’s solicitation charge fails as a matter of law because it lacks a necessary element of the offense,” he wrote.
“Second, I believe that both our statute and the reason-to-believe standard require more evidence than was presented in this case, where the commission launched an investigation of American citizens based entirely on a selectively edited, anonymous video from a foreign entity. The commission should have dismissed this matter at the outset,” he added.
While the legal narrative in the case is complicated, the results were not. Facing a federal investigation supported by one Republican commissioner, the Great America PAC coughed up a $25,000 fine, concerned about the legal costs fighting the complaint, while Benton held out and was cleared by the FEC’s vote not to move on.
Benton’s lawyers said it was obvious that there never was a case. In his defense, his lawyers wrote: “Mr. Benton did not actually, directly, and successfully solicit a contribution from a foreign national, as [FEC’s office of general counsel] now alleges. He did not make a solicitation because the foreign agents offered a contribution unsolicited. If he did make a solicitation, he did not solicit a contribution from a foreign national because the foreign corporation’s agents had lied about the existence of a prospective foreign donor — simply put, like Santa Claus or the Easter Bunny, no foreign donor existed. For the commission to change the meaning of the [FEC] Act and commission’s regulations to encompass incomplete thought crimes and retroactively punish Mr. Benton would be a grave violation of Mr. Benton’s due process right.”
Cooksey’s statement was seen in some legal circles as a scolding of Dickerson’s initial vote with Democrats to open the case.
On Wednesday, Dickerson, the commission’s vice chairman, responded with his own statement “to explain” his initial vote to proceed with the investigation based on a “reason-to-believe” a violation occurred, then eventually to close it over a lack of “probable cause.”
Voting to open the case, he said, was “necessary to prove or disprove” that there was a violation.
“The commission found [reason-to-believe] based on a particular theory and authorized an investigation targeted at the evidence necessary to prove or disprove that theory. Despite this mandate, OGC’s investigation failed to develop the factual record, leaving us, at the probable cause stage, with only marginally useful evidence. Faced with a failed investigation and a newly-advanced legal argument to which OGC had no answer, I voted against a probable cause finding in these matters,” he wrote.
But FEC watchers said that the statement didn’t address the fine to Great America PAC and appeared to open the door to an expanded view of what it takes for cases to begin in the “reason-to-believe” phase.
And that is important, they said, because Dickerson is slated to be the next FEC chairman.
