Open Secrets
Biden’s FEC nominee pledges consensus building in Senate hearing
By William Gavin
President Joe Biden’s nominee for the Federal Elections Commission, Dara Lindenbaum, touted herself as a “consensus builder” and vowed to obey ethical norms at a U.S. Senate Rules Committee hearing Wednesday.
The FEC is the independent regulatory body tasked with enforcing federal campaign finance regulations. In order to prevent partisanship no more than three of the six commissioners that lead the agency can be of a single party. Two Democrats and three Republicans currently sit on the commission. Lindenbaum would replace
Independent Commissioner and current Vice Chair, Steven Walther should she be confirmed.
Throughout the hearing, Lindenbaum asserted herself as a negotiator and dealmaker who can help ward off “deadlock.” Because any action requires four commissioners’ affirmative votes, 3-3 deadlocks often prevent the FEC from issuing penalties or investigations. For example, the FEC closed just 35 cases under review in 2020, resulting in just $70,200 in civil penalties. With enough commissioners for a quorum in 2021, the FEC closed 194 cases and issued $812,378 in civil penalties. In comparison, the FEC closed 126 cases in 2006, resulting in $5.5 million in civil penalties.
“I intend to come in with a position of respect for my fellow Commissioners on both sides of the aisle. I also have a letter of support from 30 of my fellow practitioners from both sides of the aisle that can speak to my ability to work well with others,” Lindenbaum said. “I think that letter and that support from my colleagues in this community gives me a baseline, and a level of understanding and good faith, to go into these conversations so that my fellow commissioners know that I am on the same page.”
Several senators, including Sen. Angus King (I-Maine) and Sen. Cindy Hyde-Smith (R-Miss.), were primarily focused on if Lindenbaum would operate without an overt bias towards Democratic campaigns and legislation due to her history working for Democratic politicians.
Lindenbaum currently serves as general counsel for Georgia gubernatorial candidate Stacy Abrams’ campaign, and had previously held that role in Abram’s 2018 campaign. She also worked as deputy general counsel for former Gov. Martin O’Malley’s (D-Md.) 2016 presidential campaign.
When asked by Hyde-Smith directly, Lindenbaum asserted that she would recuse herself from any matter involving a former client for her first two years as commissioner. She also pledged to recuse from matters involving clients of the law firm where she works, Sandler Reiff Lamb Rosenstein & Birkenstock, for two years, and seek out the FEC’s ethics counsel for further guidance past that.
Sen. Ted Cruz (R-Texas) pushed Lindenbaum to answer questions of election legitimacy and asked if criticism of an election as “stolen or otherwise invalid undermines the public faith in the democratic process.” Cruz further pressed Lindenbaum on whether Abrams or current Gov. Brian Kemp (R-Ga.) won Georgia’s 2018 gubernatorial election. Abrams had criticized the election as an example of “deliberate and intentional” voter suppression by Kemp, according to NPR.
Cruz accused Lindenbaum of seeking to enjoin Kemp and the Georgia state election board from using the “Use it or Lose it” statute used to purge voter rolls, and declare the election unconstitutional on behalf of Abrams. Lindenbaum helped file a complaint on behalf of several religious groups and Fair Fight Action, an Abrams-founded anti-voter suppression organization, alleging that the voting machines used in the 2018 election should be removed, that Kemp and the state election board violated Georgians’ right to vote and a section of the Voting Rights Act of 1965, among other violations.
Lindenbaum defended the complaint and said the allegations, including that the voting machines used in 2018 switched votes from Abrams to Kemp, were based on affidavits and first-hand accounts from voters.
Since the case is in active litigation and will not be heard until April 11, Lindenbaum declined to answer in-depth questions about the proceedings.
Under questioning from Sen. Bill Hagerty (R-Tenn.) over whether the design of the FEC should change, Lindenbaum asserted that she has no desire to change the makeup of the FEC and would leave that decision entirely for Congress to address.
“I can say that I have practiced in many different states. and in areas where sometimes a regulatory body may have a partisan bias it is a hard way to practice,” Lindenbaum said. “I again leave it to your decision, if that is a change that you and Congress decide to make. But if I’m confirmed I will be following, and part of, the structure established by Congress.”
Hagerty also spoke about the recent fine announced by the FEC against Hillary Clinton’s 2016 campaign and the Democratic National Committee for their role in funding the controversial Steele Dossier compiled by Fusion GPS. The senator asked Lindenbaum if she could comment on the classification of the campaign contributions used to pay the firm.
“I think it’s important as a general matter that candidates and campaigns and other entities take care to report all of their expenditures. And I think another important aspect is for the FEC, to be clear about how you actually do reporting,” Lindenbaum said.
Lindenbaum said she aims to “make sure that the law and regulations that are being put forward are straightforward, clear and can be complied with without making it impossible to take advantage of new technologies.”
“It is crucial that we maintain technological flexibility while providing the public transparency to make informed decisions,” she added when asked about digital electioneering communications and online ads by Sen. Jon Ossoff (D-Ga.). Lindenbaum noted that she hopes to work with fellow commissioners to find consensus on a pending rulemaking to increase disclosure around online ad spending.
In closing, Chairwoman Sen. Amy Klobuchar (D-Minn.) and Ranking Member Sen. Roy Blunt (R-Mo.) praised Lindenbaum, and asserted their support for her nomination.
“I look forward to supporting your nomination and was pleased to hear your determination to serve this term,” Blunt said. “And hopefully, the Congress and whoever’s in the White House in the future will do a better job of finding somebody else who’s willing to serve so you can leave whenever you want to leave.”