Does the rule of law matter and should government officials abide by the ethical obligations that govern them? Robert Bauer, former White House Counsel for President Obama, answers: “Not so much.”
On Tuesday, in furtherance of its mission to hold our government accountable, Cause of Action Institute (“CoA Institute”) sent a letter to the Federal Election Commission (“FEC”) Inspector General (“IG”) and Designated Agency Ethics Officer asking them to investigate whether Commissioner Ellen Weintraub violated government ethics standards when she acted outside her authority as a commissioner while using FEC resources. Ms. Weintraub issued a statement on FEC letterhead, posted to the FEC website, urging President Trump to provide evidence of his claims about voter fraud during the 2016 elections, and then went on national media outlets to promote that statement. In our letter, we explained that alleged voter fraud and New Hampshire criminal violations, the two subjects of Ms. Weintraub’s statement, are outside the FEC’s jurisdiction and therefore her advocacy on this matter was an improper use of government property and official time. We also pointed out that, during the Obama administration, Ms. Weintraub herself had expressly rejected any involvement in questions of voter fraud because such matters were outside the FEC’s jurisdiction.
Commissioner Weintraub responded to our letter by providing a post hoc rationalization that her statement was in some manner geared to determine whether “the expense of these buses [alleged to have been used in the voter fraud] has not been accounted for on any campaign-finance filing.” Without addressing her prior statement about voter fraud being outside of FEC jurisdiction, she also alleged, without citation to any authority, that her statement about the investigation of voter fraud was proper because it was within her “official duties as a federal election official to comment publicly on any aspect of the integrity of federal elections in the United States.”
Yesterday, former White House Counsel Bauer rode to Ms. Weintraub’s defense with a post on his campaign-finance blog, More Soft Money Hard Law. Nearly lost among Mr. Bauer’s various defenses of Ms. Weintraub’s behavior is a key concession that vindicates CoA Institute’s letter to the FEC. As he wrote: “Are Weintraub’s comments directly and squarely within the jurisdiction of the Commission, such that she can take some action in response to the President’s failure to produce the requested evidence? No[.]” To anyone who believes in the rule of law—that old-fashioned notion that laws, standards, and rules are to be applied regardless of one’s rank or standing in society—that should have ended the matter. Ms. Weintraub, in her role as FEC Commissioner, acted outside her authority; applicable ethics rules prohibit officials from using official time and government property in unauthorized conduct; Ms. Weintraub continued her unauthorized conduct; she should accordingly be the subject of an ethics investigation.
But Mr. Bauer demurs. Instead of describing the governing ethical standards and their application to Ms. Weintraub’s behavior, he claims that, “as a 13-year Commissioner, [Ms. Weintraub] should be free to take notice of any claims that bear on the integrity of elections.” Of course she is free to “take notice” of such claims; no one has argued otherwise. The issue, however, is whether she can expend government time and resources in promoting the notice she takes.
The length of an official’s tenure at an agency has no bearing on whether she is permitted to operate outside the statutory authority creating the agency’s jurisdiction. If Ms. Weintraub felt moved by these issues, she was free to opine in her personal capacity. But using government property and official time to advance personal views that are—as Mr. Bauer himself admits—outside the FEC’s jurisdiction was improper.
Unable to find a valid basis to defend Ms. Weintraub’s behavior, Mr. Bauer’s only remaining move is to impugn CoA Institute’s motives and methods.
First, the motives. Apparently unconcerned with Ms. Weintraub’s unethical use of government property and time, Mr. Bauer writes that “Budgets are not balanced on the savings achieved by stopping this level of activity. There is very little of a principle to be upheld here.” Although the volume of money used improperly may not be enough to balance a budget, the principle at issue is vital and one that CoA Institute works every day to uphold. Congress creates federal agencies to accomplish statutory objectives and funds them with the taxpayers’ money. Public officials are hired and paid solely to accomplish those objectives. Unfortunately, agencies are notorious for straying beyond their authority, wasting taxpayer resources, interfering with the free market, and undermining the liberties that are Americans’ birthrights. Mr. Bauer may not care that Ms. Weintraub exceeded her authority, but we do. Mr. Bauer may not be upset with the unchecked growth of power in the administrative state, but we are.
Mr. Bauer also repeats Ms. Weintraub’s claim that our letter was an effort to silence the commissioner, stating that our aim is to “suppress[] unwanted speech” and our “purpose is clearly to strike back at the Weintraub [sic] for the substance of her comments and have her think twice about repeating them while ‘under investigation.’” What does Mr. Bauer know about our motives? Did he interview those who drafted the letter? Did he even go to our website to look at our mission statement or review the kinds of cases we take on? Since its inception over five years ago, CoA Institute has existed to provide oversight of federal agencies and hold accountable the officials who exercise so much control over the lives of everyday Americans. We are firm defenders of the First Amendment, and if Ms. Weintraub had made the same statement in her personal capacity, we would have applauded her right to do so. But that is not what happened. In acting in this matter in her official capacity, she exceeded her statutory authority, and for that, she should be held accountable. We do that for apparent violations of all kinds by government officials, regardless of their political affiliation, including former Secretary of Agriculture Tom Vilsack and former Secretary of State Colin Powell.
As for methods, Mr. Bauer suggests that CoA Institute’s request for an investigation will cost more money than it will save and thus, if we were really concerned about preserving government resources, we should have remained silent. As he stated: “But it cannot escape attention that to make its point, the organization urges a remedy that requires throwing real government money away, on an ‘investigation.’ Ms. Weintraub’s statement-and-tweets communication on voter fraud is a bargain compared to the paper and staff time that may be burned in an IG inquiry.” Here, Mr. Bauer appears unaware of the economic concept of a sunk cost. Federal tax dollars already are being spent to employ both an IG and Designated Agency Ethics Officer at the FEC, and the precise purpose for which these officials and their offices exist is to administer government ethics rules and oversee investigations into wrongdoing. Our request that they allocate a portion of their time to determine whether Ms. Weintraub violated her ethical obligations in this matter is thus entirely proper. These officials exist to investigate misconduct and we are merely bringing to their attention a matter that they should be investigating of their own accord. And if we’re wrong, which Mr. Bauer does not believe, we’ll post a follow-up, just as we did for former Secretary Vilsack.
Finally, Mr. Bauer’s attempts to justify Ms. Weintraub’s unethical behavior by pointing to President Trump’s use of “Twitter to visit hell on a department store chain that discontinued his daughter’s line of clothing,” is a logical fallacy. If President Trump’s action is wrong, how does that exonerate Ms. Weintraub? Far from proving that CoA Institute acted from a partisan agenda rather than from principle, Mr. Bauer’s insinuation is a case of projection.
James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter at @JamesValvo.
