President Donald Trump first nominated Texas election law attorney Trey Trainor to the Federal Election Commission in September 2017.
Then, Trainor waited. Days turned to months, months into years. Trump kept re-nominating Trainor. The U.S. Senate kept ignoring Trainor’s nomination.
The consequences were profound: By September 2019, the normally six-commissioner FEC had dwindled to three commissioners — too few to legally enforce and regulate the nation’s campaign finance laws. The agency’s backlog of cases ballooned. New rules and regulators stalled. Political candidates and committees couldn’t obtain the commission’s formal advice.
Finally, in May, the Senate voted along party lines to confirm Trainor, who took his oath of office on June 5. With Trainor officially aboard, the FEC could fully operate for the first time in more than nine months — and will today conduct its first public meeting in nearly 10 months.
I spoke with Trainor by phone on June 9. Among the thornier issues discussed: his skeptics, his legal work for Trump and Republicans, FEC commissioner infighting, regulation of the Internet and the term “dark money.” We also tackled how the FEC will grapple with that massive backlog of cases — there are more than 350 pending before the agency — and whether commissioners will agree to defend the agency in court against lawsuits alleging the FEC is taking too long to rule on certain cases.
This interview is lightly edited for length and clarity:
Q: As far as I can tell, no person has ever waited this long to become an FEC commissioner after first being nominated. Why did you stick around so long even though, obviously, you didn’t get on in 2017, 2018 or 2019 — and had to wait until 2020?
Trainor: When the president asks you to do something on behalf of the American people, one, your honored to do it, to be asked, and for him to have confidence in me to do it. With regard to having to wait around, it put some minor kinks in my practice … But it didn’t hamper my practice so much that I wasn’t able to still make a living. I did end up leaving my law firm. I was running into a few issues at the law firm with how long it was taking and having to throw that disclaimer out there. I would have to say there’s an actual conflict, but a potential conflict, that they then had to have that discussion. It became easier for me to go out on my own, take my book of business with me and still work with my clients. I was able to make that work and still be able to go through this process. Like I said at my confirmation hearing, I think that the commission serves an important role for the American people. The money that’s spent in politics is always of interest. Probably more so of interest to people who are actually involved in politics than those that are casual observers, but an important role nonetheless.
Q: The commission’s just starting back up after not having a quorum for nine months. What are your priorities — one, two or three — for you now that you’re on the commission, the commission is back up and running and you can get to work?
Trainor: My first priority is to look at the backlog of cases and see how quickly we can move through those and where we can find consensus among us. I mean, obviously, it’s still difficult with four commissioners because we have to have consensus amongst us. And I think that limits the discussion, too. Having two more people there allows for — everyone has a different viewpoint … I haven’t been in the new building since the since the FEC’s move, and I hadn’t even really had had a chance to even look at the docket with just being sworn in last Friday. I’m still actually doing some additional training. One of my big concerns that I’ve seen thus far that I have is the agency not being defended in some of the court cases that are there. I think that the adversarial system in the courtroom … is very good at determining things the right way. And the judges need to have both sides represented. And I think default judgments lead to bad law because the issues aren’t fully vetted. And so I think that’s probably a second priority for me is to see what we can do to come to consensus to have the agency fully defended in litigation.
Q: You mentioned the two vacancies on the commission. Of course, nothing that you can control. But is it going to be a hindrance not having a full complement of six commissioners, or is that something you’ll deal with and push through?
Trainor: We deal with it and push through it. It just means that we’re going to have to we’re going to have to compromise more where we can on the issues. And everybody’s going to have to have an open mind. You know, I’m at the disadvantage of not having worked with my colleagues. They’ve all been there for a long time. They know each other’s thought processes and what their hot button issues are and what aren’t their hot button issues. I have a steep learning curve with regard to that. Hopefully I don’t step on any landmines in that process or trigger somebody with just having a different opinion to start with in the discussion of a case.
Q: Do you see that as an advantage at all and that you’re going to be coming in completely new? I don’t have to tell you that the three commissioners, they know each other really, really well. [Laughter]
Trainor: I alluded to that a little bit at the at my confirmation hearing. I think Congress, in its wisdom of having limited the terms to six years and allowing for the rotation of commissioners through, I think does bring an advantage of having practitioners move into the slots of being regulators and understanding what effect you’re having on the regulated community. And I think that’s important for an understanding of the confines that are being put on the regulated community. The regulated community is changing as America changes. If things move online on Twitter, fundraising happens faster as new ways to communicate with voters come out. If you’re stuck at the commission and you’re not fully engaged in that process like I’ve been in past few years, working on these campaigns, knowing how they’re using text messaging to fundraising and communicate with voters, knowing how important Facebook and Twitter have become as delivery mechanisms for messages — if you’re not in that every day, and it’s just coming to you in an advisory opinion capacity with very limited fact set, and not knowing the full effect of what’s going on in the regulated world out there, that’s why I think I have an advantage coming in. I’ll be able to bring that perspective of people who are currently out there working in it.
Q: It wasn’t long ago with the commission that they were having discussions about removing references to radiotelegraphs and other types of obsolete technology from the regs.
Trainor: Exactly. It’s interesting that in Texas, we still have in our state statutes those same things in there. You know, we even have the reports that you file in the last eight days of the election — they’re still called telegraph reports.
Q: Do you think there’s any room for the four commissioners, as assembled now, to tackle what was tried a couple of years ago with major political overtones: Some sort of comprehensive rulemaking that that would modernize the way that the FEC looks at all the things that you just mentioned and then some, including Internet advertising and pretty much everything [online] that wasn’t a thing 15 or 20 years ago, but very much is today?
Trainor: I think it’s important for us to try and do that. I know that that rulemaking got bogged down and it got very partisan on both sides. But I think it’s important to try. And I think it’s important to try for the regulated community so that you can so that they can have updated guidance. My perspective as a lawyer has always been to try to guide my clients to avoid running into any problems. People, if they know what the rules are, can always work within the confines of what the rules are … If the executive agency or the legislature itself are not moving as fast as the marketplace is, then you run into real problems. So, I think it’s important for us to try to do that and to listen to the regulated community in that rule making process for the things that they need to make things work.
Q: When you hear the criticisms — Trey Trainor is going to come to the FEC and is just going to shut it down again, then he doesn’t care about election law — what do you say to any criticism like that? Especially from folks out there who want to see the FEC take a much more active, and some might argue activist role in trying to regulate campaign finance law in general?
Trainor: One, it’s impossible for me as one commissioner to shut down the agency. And I don’t think I would have waited three years to be put on the commission to come in with the intent to shut down the agency. So, I take all of that is just is just hyperbole in me going on to the commission … As I said, I think that the commission has a very important role to play. You know, the Supreme Court made it very clear that there are certain areas that we can regulate within the bounds of the First Amendment. Congress has chosen to do that. And the FEC is the body that has to execute that. And I fully intend to enforce the statute as written by Congress and as interpreted by the judiciary.
Q: [Democratic FEC Commissioner] Ellen Weintraub has been extremely outspoken, I think it’s fair to say, on a number of different issues, some of which are part and parcel of the FEC and is work, others [such as voting rights] that aren’t necessarily in the FEC purview. Do you feel like you can find common ground with her? She’s going to be operating for as long as she’s there, probably, from a very different point of view and standpoint on a lot of the matters before the commission.
Trainor: I’ve only spoken to Ellen twice, very briefly. She’s been very cordial. She was very good welcoming me to the commission with a voicemail that she left. And then she and I met actually at a reception about a year ago and just had a very brief conversation talking with each other. She has been very vocal. The fact is, it’s the Federal Election Commission. And most people, when they think about that, they think that we actually regulate elections. I think playing off of that misunderstanding that the public generally has, to put out a statement that really don’t have anything to do with the jurisdiction of the agency, is problematic. But it is fully within her purview [as an individual] to do that. So, I wouldn’t begrudge her that. But I would like to believe that I can find common ground on issues with anyone if we actually sit down with the full intent of coming to a solution and not being totally obstructionist in the process.
Q: The many cases that the FEC is going to have to be dealing with and grapple with … at least a few of them might involve some of your clients. Donald Trump, or the Trump campaign, has a couple of cases that are before the FEC right now. In a case like that where you may have a conflict, or you do have a conflict or perceived or real, will you recuse yourself? And what would happen then, since there are only three commissioners left if somebody recuse themselves?
Trainor: I really have to talk with [the Office of General Counsel] about what would happen if I recused myself in those situations. I have had a briefing with OGC about the recusal process and the limitations, those type of things. The work that I did for the Trump campaign as a lawyer, mostly involved recount in Michigan, things like that. So, to the extent that that is an issue that’s before the commission, clearly I would recuse myself. If it’s a more broad issue, something that I have no personal knowledge of the facts, wasn’t involved in, things like that — clearly, if the Trump campaign comes up, I’m going to sit down and have a detailed conversation with ethics [lawyers] at the commission about whether or not I need to recuse. And then, of course, there’s just the general perception of whether or not I inject some sort of bias into it. And that’s going to come into play as well. But I’m not going to say right now, “Yes, I’m going to recuse myself,” or, “No, I’m not going to.” I’m not going to put in place a blanket recusal with regard to anybody. I don’t know any commissioner that has really a blanket recusal with regard to anybody that’s currently serving in public office. I would not want to hamstring the commission in that way, especially not knowing what effect it has if I’m sitting there, so I’m technically the fourth person there for a quorum, but I’m not voting on it. What are the legal aspects of that? I haven’t really fully vetted it.
Q: If there’s one term that gets thrown around at FEC meetings in one shape or another almost every meeting, it’s the term “dark money.” What does that term mean to you, and what does it mean to you in the context of being a commissioner?
Trainor: It’s really interesting for me because I’ve never really been able to nail anyone down with regard to what “dark money” is. Because “dark money” is always what the other side is doing that I don’t like. It may still be fully within the bounds of legality, but it’s money that I don’t like. That’s typically how I see the “dark money” issue coming up. And especially now that you’ve seen both sides of the political aisle become very active in the independent expenditure world, I’m not even sure that the appetite is out there to address it or if it even needs to be addressed beyond where we sit right now. There are reporting mechanisms in place. At least right now, there are lower court decisions that are requiring the disclosure of donors, at least those within the quarter when the expenditures being made. I don’t know how those will hold up to scrutiny going forward. But a lot of that issue is playing out the courtroom, not necessarily at the commission.
Update, 10:45 a.m., June 18: At its first meeting in 10 months, the FEC unanimously confirmed Trainor as commission chairman — a rotating position that has previously been filled on multiple occasions by each of the three other commissioners: independent Steven Walther, Republican Caroline Hunter and Weintraub.