By Dan Christensen, FloridaBulldog.org
For 13 years, the Federal Election Commission chased ex-Congressman David Rivera to the brink of trial for allegedly violating federal campaign finance law only to have its case fall quietly apart.
On Monday, FEC muckety-mucks raised a white flag and sent a letter to Rivera’s lawyer notifying the Miami Republican that the independent agency had closed its long-running enforcement case against him “and this matter is now public.” Trial was set to begin June 16 in Miami.
The six-line letter contains no words of explanation, no expression of regret or even an acknowledgment that the government failed. Just the cold, hard language of bureaucracy: “This is to advise you…See Statement of Policy Regarding Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016).”
Rivera, who served in Congress from 2011-2013, still faces federal criminal charges stemming from his indictments – most recently in December – for money laundering and failing to register as a foreign agent while lobbying for both Venezuela and Venezuelan businessman Raul Gorrin Belisario.
What happened in Rivera’s FEC case is one result of the conservative shift in the courts that, among other things, has played havoc with federal rules that have long governed political campaign fundraising and spending. In deciding the case, the 11th Circuit Court of Appeals last summer changed how FEC cases are to be decided.
The FEC had a solid case against Rivera. Solid enough that in 2021, after hearing the evidence, the late U.S. District Court Judge Marcia Cooke agreed with the FEC that a decade earlier Rivera “knowingly and willfully” made more than $75,000 in contributions “in the name of another” to secretly boost the 2012 Democratic primary campaign of Justin Lamar Sternad and weaken his eventual general election opponent, Joe Garcia.
(The sleazy ploy didn’t work. Rivera lost to Garcia. And after reading Miami Herald stories that exposed the scheme, Miami attorney and current Florida Bar president Roland Sanchez-Medina Jr. filed a complaint with the FEC.)
Judge Cooke also granted the FEC’s request to assess a civil penalty of $456,000 against Rivera.
11TH DCA JUDGES MAKE A CHANGE
Until now, appeals courts relied on findings of law and fact by district court judges, which they did not disturb absent an abuse of discretion.
But when the slow-moving Rivera case finally got before appellate court panel judges Robert Luck, Barbara Lagoa (Trump appointees) and Charles Wilson (Clinton appointee), they decided that Cooke erred when she granted summary judgment in the FEC’s favor “because there was a genuine issue of material fact regarding questions that should be resolved by a jury.”
The “genuine” issue: Rivera said under oath he didn’t do it. That’s it.
They ordered the case shipped back to South Florida’s district court where, following Cooke’s death in January 2023, the case was assigned to Judge Aileen Cannon. Cannon set the June trial date that became irrelevant after the FEC chose to walk away from the case.
It is the FEC’s duty to enforce federal campaign finance law. So why not go to trial with evidence that had already convinced a federal judge?
Florida Bulldog asked FEC attorneys Greg Mueller and Lisa Stevenson for comment. Neither responded.
But outside FEC watchers believe the reason is simple: scarce resources. In 2024, the FEC had 291 employees and a budget of $85.3 million, and its share of the total civilian federal workforce was 0.013 percent, according to USA Facts.
“One of the most frequent reasons cited by commissioners of both parties for dismissing cases is, ‘It’s not worth it. We don’t have enough money for enforcement,’” said one Washington D.C. campaign finance attorney who asked not to be named.
Congress created the bipartisan FEC in the wake of the Watergate scandal in 1975 to implement and enforce the Federal Election Campaign Act (FECA). Of its regular contingent of six commissioners, no more than three can be from the same political party and four votes are needed to take any official action. Commissioners are appointed by the president and confirmed by the Senate.
Today, the FEC is effectively paralyzed with only three commissioners. The law requires at least four commissioners to agree before it can take action. The current commissioners are Democrats Shana Broussard, Dara Lindenbaum and Republican James “Trey” Trainor. The White House has not said if President Trump will appoint any new commissioners.
SECOND HIGH-PROFILE REPUBLICAN LET OFF THE HOOK
The nonprofit, nonpartisan Campaign Legal Center (CLC) works to promote democracy through law.
“For many years, the FEC successfully issued rulings that increased transparency for voters, made candidates and campaigns more accountable, and implemented several laws to regulate contributions in federal elections,” the CLC’s website says. “Starting in the mid-2000s, members of Congress who oppose transparency and want unlimited secret spending in our elections have worked to ensure that at least three commission seats are occupied by people who are fundamentally opposed to the FEC’s mission of regulating money in federal elections. As a result, the commission would routinely deadlock, usually voting 3-3 along party lines, on important campaign finance issues.”
This is the second time in as many months that the FEC has let a high-profile Republican offender off the hook.
On April 4, it dismissed without penalty charges against Miami billionaire philanthropist Stuart Miller the longtime leader of the giant home builder Lennar Corp., that in 2022 he used a shell company called Tread Standard LLC to secretly make $125,000 in illegal contributions to a pair of Republican Super PACs (political action committees). It did so even though Miller admitted, after being caught, to using Tread Standard to hide his involvement. $100,000 went to a committee helping former football player Herschel Walker in his unsuccessful run for the U.S. Senate. $25,000 went to a Super PAC helping Miami U.S. Rep. Carlos Gimenez in his 2020 successful run.
Federal law requires that political contributions be properly attributed to protect the integrity of the federal campaign process. The FEC, however, decided that the Super PACS and Tread Standard likely violated federal reporting requirements by failing to identify Miller as the true donor. They signed settlement agreements, promised not to do it again, and no penalties were imposed on them.
If the FEC had pursued the cases as contributions made in the name of another, instead of shifting the blame to the entities that received the money, Miller could have faced possible criminal prosecution. Federal campaign finance law makes it a five-year felony to contribute $25,000 or more in the name of another.
The FEC made it clear that this is how such cases will be treated going forward – as potentially less serious reporting violations. Under that scheme, the only way a political committee can get in trouble with the FEC is when a contribution comes in from an LLC and they fail to use what the FEC deems their “best efforts” to determine who the true donor was.
But best effort doesn’t mean much. A Super PAC’s treasurer can ask the LLC to disclose, but if there’s no answer, that’s considered a best effort.
“It’s a road map to violate the law and get away with it,” said the Washington attorney.
The same lawyer said the FEC’s ruling in Rivera’s case will similarly harm campaign finance accountability.
“This is going to present a huge enforcement challenge for the Federal Election Commission going forward. People who get in trouble will learn from this case that if you just refuse to settle, the odds are that eventually the case will be dismissed.”
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