But Trainor’s nomination seems on track, even in the face of Democratic opposition. Republicans who spoke on the panel, as well as McConnell, seemed supportive of the nominee. (Texas GOP Sen. Ted Cruz, who is self-quarantining after coming in contact with a person infected with coronavirus, had been slated to introduce Trainor.)
“Confirming Mr. Trainor will restore a quorum and restore an even balance between the two parties’ appointees,” McConnell said. “So I’m optimistic we’ll be able to move forward with this nominee.”
Trainor had previously served as counsel for Trump’s campaign and the RNC, according to a biography from his former law firm archived by ProPublica, a point of contention for Democrats who argued he should recuse himself from cases involving the president. The Texan has also argued against the utility of publicly disclosing political donors’ details, instead saying more attention should be focused on lobbying, according to a review of his public remarks by The Washington Post.
Trainor sought to clean up his previous comments in his opening statement: “[T]he U.S. Supreme Court has held that our current campaign finance regulations, particularly the disclosure regime, are an allowable exception to the First Amendment for the purpose of deterring corruption.”
The FEC has six Senate-confirmed commissioners who serve six-year, staggered terms. By law, no more than three commissioners can belong to the same party. They are allowed to serve past their terms until replacements are confirmed.
In practice, this has led to attrition at the agency, with commissioners routinely serving past their terms as of late, with nominees rarely put up by successive White Houses. The commission needs at least four commissioners to have a quorum. The agency lost that at the end of August, when Republican commissioner Matthew Peterson left for a job at a law firm. (Peterson had also been nominated for a federal judgeship, but withdrew after a botched confirmation hearing.) Trainor was nominated to fill Peterson’s seat, for a term ending in 2023.
All three of the remaining commissioners — one Democrat, one Republican and an independent who usually votes with Democratic commissioners — are serving well past their original terms, having all been confirmed during the second Bush administration.
Republicans maintained that it was crucial to move forward with Trainor’s nomination now, because the agency lacked a quorum — which has been the case for the last half-year. Trainor and Republican senators noted the well-extended terms of the current commissioners, with Trainor saying deadlock at the commission are likely a “function of the overextended stays.”
McConnell advocated for a full new slate of commissioners to be nominated at the hearing.
Democrats and some good-governance groups have opposed Trainor’s nomination, and argued that he should be paired with a new Democratic nominee.
“It is unacceptable to only nominate the Republican candidate to the FEC when there is a fully vetted Democratic candidate pending,” read a letter from a group of largely liberal-leaning organizations, including End Citizens United Action Fund and the People for the American Way. “There is no excuse to refuse consideration of the Democratic nominee. Doing so is sheer partisan politics and undermines the integrity of a fair and balanced appointment process for this bipartisan agency.” The letter also argued that Trainor’s positions are “antithetical to the purpose of the Commission and our campaign finance laws.”
The letter did not identify who Democrats put forward to the White House as a potential nominee. Sen. Amy Klobuchar (D-Minn.), the ranking member of the committee, said the Democrats’ pick was a woman of color who had been “vetted and cleared” but not nominated, but also did not name the pick.
Klobuchar declined to name the potential nominee after the hearing, but The Center for Public Integrity previously identified the Democrats’ pick as Shana Broussard, an attorney and assistant to current FEC commissioner Steven Walther.
Other groups like Issue One and Campaign Legal Center, both of which are nonpartisan and argue for more robust campaign finance regulation and enforcement, did not sign on to the letter but have argued Trainor is unqualified. Trainor did garner support from the Institute of Free Speech, which was founded by a former FEC commissioner that pushes for lighter regulations.