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Appeals court’s ruling in favor of ex-U.S. Rep. David Rivera may be fatal to FEC’s mission

FEC

By Dan Christensen, FloridaBulldog.org

When a federal appeals court threw out the Federal Election Commission’s $456,000 judgment against former Republican Miami congressman David Rivera last week, it may also have inflicted a mortal blow to the FEC.

FEC staff dogged Rivera for years before obtaining a 2021 ruling from the late Miami U.S. District Court Judge Marcia Cooke granting its motion for summary judgment. That ruling asserted that documentary evidence, corroborating witness testimony and Rivera’s own statements established that he’d secretly funded the Democratic primary campaign of Justin Lamar Sternad to weaken his eventual 2012 general election opponent, Joe Garcia. It didn’t work. Rivera lost to Garcia.

After deciding that no genuine dispute of fact existed, Judge Cooke, who died in January 2023, also granted the FEC’s request to enter a civil penalty of $456,000 against Rivera, for “knowingly and willfully” making more than $75,000 in contributions in the name of “another” to boost Sternad. Cooke discounted Rivera’s denials of wrongdoing under oath.

Rivera had argued that the nearly $500,000 penalty imposed on him for running a conduit contribution scheme was so large that it violated the Eighth Amendment to the U.S. Constitution barring “excessive fines.”  The fine, however, was far from the largest every imposed by the FEC.

rivera
David Rivera

Instead, a three-judge panel of the Eleventh Circuit offered another reason to overturn Judge Cooke’s detailed findings and vacate both her grant of summary judgment and the large civil penalty: Rivera is entitled to a jury trial before a new judge.

Cooke’s error, they said, was in finding there were no genuine issues of fact because she “improperly discounted” Rivera’s testimony in sworn affidavits and a deposition that he never provided Sternad with money or help of any kind.

‘FATAL TO THE FEC’S MISSION’?

“It may be fatal to the FEC’s mission as an enforcement agency,” said Washington, D.C. attorney Brett Kappel, an authority on campaign finance, lobbying and government ethics laws. “The FEC has no power to impose civil penalties, other than administrative fines for late filings. If it can’t negotiate a settlement, called a conciliation agreement, it has to go to court to ask the court to impose a civil penalty. This is extremely rare (but) when they do, they are typically resolved on summary judgment.

“The Eleventh Circuit ruling is that there has to be a jury trial in essentially every case where the respondent simply denies the allegation in the complaint – no matter how much evidence there is to support the allegation. The FEC simply doesn’t have the resources to conduct multiple jury trials each year,” Kappel said.

FEC
Brett Kappel

The three-judge panel included two ultra-conservatives appointed by former President Donald Trump – ex-Florida Supreme Court justices Robert Luck and Barbara Lagoa – and Charles R. Wilson, who was appointed to the court by former President Bill Clinton. Wilson is one of only two African-Americans to serve on the Eleventh Circuit bench. In February Wilson informed President Joe Biden that he intends to take senior status later this year. No one has been nominated to succeed him.

So who will preside at Rivera’s trial? It will be U.S. District Judge Aileen Cannon – now familiar to many after coming under heavy fire for her controversial handling of the Department of Justice’s classified documents prosecution of Trump.

The independent FEC is led by six commissioners nominated by the president and confirmed by the Senate. No more than three can be affiliated with the same political party, and a majority of four must agree to take any significant action like opening an investigation or assessing a civil fine. It was created that way to keep things as fair and nonpartisan as possible, but the result today is often deadlock and paralysis.

That means the FEC is today often ineffectual in its primary mission, to provide the public with information about spending in political campaigns and enforce federal campaign laws. But, as Kappel explained, things could go from bad to worse given the Eleventh Circuit’s new ruling.

‘WHY THE FEC IS INEFFECTIVE’

The nonprofit Campaign Legal Center, which advocates for voters, holds politicians to blame for the FEC’s inadequacy.

In a 2022 article on its website titled “Why the FEC Ineffective,” it says, “Since the mid-2000s, members of Congress who oppose transparency and welcome unlimited secret spending in our elections, led by Senate Minority Leader Mitch McConnell, have worked to ensure that people opposed to the agency’s core mission occupy three of those seats.  

Sen. Mitch McConnell, R-KY

“These Commissioners have failed to enforce the law against both Democratic and Republican special interests and hold them accountable for flagrant legal violations.”

The Eleventh Circuit’s decision appears to reflect the U.S. Supreme Court’s June 27 landmark decision that defendants in Securities and Exchange Commission enforcement cases have a right to a jury trial. The case, SEC v Jarkesy, challenged the constitutionality of the SEC’s internal courts to resolve disputes, saying it violates the Constitution’s guarantee of a jury trial.

The vote was 6-3, with the high court’s conservative justices giving a win for fellow conservatives who had long argued that regulators like the SEC had too much power.

Chief Justice John Roberts wrote the majority opinion. “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator,” Roberts said.

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