New York Times: Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever

WASHINGTON — A funny thing keeps happening in federal court. An arm of the government has not been showing up to defend itself against lawsuits. Some judges appear confused, and less than amused, by the unusual absences.

“It is necessary for the agency to pay attention to this case,” one exasperated district court judge wrote in March. Yet when the judge set another court date, in May, the agency in question, the Federal Election Commission, didn’t show up again.

It was not an accident.

For more than a decade, Democrats seeking more robust enforcement of election laws and transparency measures have been routinely routed at the F.E.C., the nation’s top campaign watchdog agency. They have complained bitterly that Republicans have weaponized the commission’s bipartisan structure — there are three commissioners allied with each party — to turn it into a toothless, do-nothing bureau.

Now, the Democratic commissioners have stealthily begun to strike back by leveraging some of the same arcane rules that have stymied enforcement efforts for years — namely, that a bipartisan vote is necessary to do almost anything — to make the agency do even less. The goal appears to be to take a commission widely seen as dysfunctional and create further deadlock, compelling federal courts to fill the breach when it comes to policing federal election law. …

There is another important, if obscure, legal factor in play. Currently, the federal courts give almost total deference to the F.E.C. when it decides not to pursue cases — even in the event of a 3-3 split — if commissioners cite “prosecutorial discretion” in their reasoning. Such cases are, more or less, not eligible for legal appeals.

“All the Republican commissioners need to do is include the magic words ‘prosecutorial discretion’ and a court will then decline to review the action,” said Paul S. Ryan, vice president for litigation at Common Cause, who has regularly filed F.E.C. complaints.

Indeed, Republican commissioners recently deployed that exact phrase — twice — in dismissing an investigation into whether Mr. Trump violated election laws with the payment of $130,000 to the pornographic actress Stormy Daniels in 2016 to keep her from publicly discussing her relationship with him.