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July 9, 2020

Free and Fair Elections (with Ellen Weintraub)

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On this week’s episode of Stay Tuned with Preet, “Free and Fair Elections,” Preet speaks with former homeland security and counterterrorism advisors to the president Ken Wainstein and Lisa Monaco about their new CAFE podcast, United Security, which debuts on Friday, July 10th. 

Then, Federal Election Commission (FEC) Commissioner Ellen Weintraub joins Preet to discuss the largest risks of the 2020 presidential election, the challenging dynamics of the FEC, and why we shouldn’t expect immediate results on election night.

To receive a link to listen to the first episode of the United Security podcast for free, sign up at cafe.com/united-security. 

To listen to Stay Tuned bonus content, become a member of CAFE Insider

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis of politically charged legal news, and updates from Preet.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

REFERENCES & SUPPLEMENTAL MATERIALS

UNITED SECURITY:

  • Lisa Monaco, O’Melveny & Myers
  • Ken Wainstein, Davis Polk
  • The New Threat Matrix (with Lisa Monaco & Ken Wainstein), CAFE.com, 5/4/2020
  • Stay Tuned National Security Special (with Lisa Monaco & Ken Wainstein), CAFE.com, 2/4/2020
  • Behind Closed Doors: Advising Obama and Mueller (with Lisa Monaco), CAFE.com, 9/28/2017

THE INTERVIEW:

FEC BACKGROUND

RECENT FEC CONTROVERSY

  • Ellen Weintraub, “I Will Not Be Silenced” Thread, Twitter, 10/10/2019
  • Reis Thebault, “Stymied by a polarized agency, FEC Chairwoman Ellen Weintraub finds her voice as a Trump critic,” Washington Post, 10/18/2019
  • Alex Horton, “Election chief, GOP colleague at odds over who kept a foreign activity memo from wide release,” Washington Post, 10/1/2019
  • Caroline Hunter, “How My FEC Colleague Is Damaging the Agency and Misleading the Public,” Politico, 10/22/2019
  • Caroline Hunter Resignation Letter, FEC.gov, 6/26/2020
  • Michelle Ye Hee Lee, “GOP appointee resigns from Federal Election Commission, once again leaving it without a quorum,” Washington Post, 6/26/2020
  • “FEC begins new chapter with Trainor at the helm,” The Fulcrum, 6/18/2020

VOTE-BY-MAIL

  • Ellen Weintraub, Election Countdown Tweets, Twitter, 7/1/2020
  • Ellen Weintraub, “Facts About Voting by Mail,” 66-Tweet thread, Twitter, 5/27/2020
  • Ellen Weintraub, “Statement of Commissioner Ellen L. Weintraub On Protecting the 2020 Election,” FEC.gov, 3/19/2020

 

  • Kate Conger and Davey Alba, “Twitter Refutes Inaccuracies in Trump’s Tweets About Mail-In Voting,” New York Times, 5/28/2020
  • Nicholas Wu, “FEC chairwoman calls out Trump over New Hampshire voter fraud claims,” USA Today, 8/17/2019
  • “Report: Ensuring Safe Elections,” Brennan Center, 4/30/2020
  • Michael Wines, “Stimulus Money to Protect Elections Falls Short, Critics Say,” New York Times, 3/25/2020
  • Adam Harris, “The Voting Disaster Ahead,” The Atlantic, 6/30/2020

ELECTION RESULTS 

  • Ellen Weintraub and Kevin Kruse, “Take Some Deep Breaths and Prepare to Wait for Election Results,” New York Times, 5/18/2020
  • Emily Ngo, “Primary Day Is Here in New York. Just Don’t Expect All the Results Right Away,” NY1, 6/23/2020

MICROTARGETING

  • Ellen Weintraub, “Don’t abolish political ads on social media. Stop microtargeting,” New York Times, 11/1/2019
  • Kate Conger, “Twitter Will Ban All Political Ads, C.E.O. Jack Dorsey Says,” New York Times, 10/30/2019
  • Richard Waters, “Google and the problem with microtargeting,” FT, 11/21/2019
  • “Facebook refuses to restrict untruthful political ads and micro-targeting,” Guardian, 1/9/2020

VOTER SUPPRESSION

  • Ellen Weintraub, Thread on Poll Worker Volunteering, Twitter, 6/29/2020
  • Daniel Garisto, “Smartphone Data Show Voters in Black Neighborhoods Wait Longer,’ Scientific American, 10/1/2019
  • Sam Levine, “Georgia primary blighted by long lines and broken voting machines,” The Guardian, 6/9/2020

CITIZENS UNITED

  • Citizens United v. Federal Election Commission, SupremeCourt.gov, 1/21/2010
  • Ellen Weintraub, “Taking On Citizens United,” New York Times, 3/30/2016
  • Jordain Carney, “Democrats introduce constitutional amendment to overturn Citizens United, The Hill, 7/30/2019

ELECTORAL COLLEGE

  • Chiafalo v. Washington, SupremeCourt.gov, 7/6/2020
  • Adam Edelman, “Hamilton in Supreme Court’s ‘faithless electors’ decision? Just you wait,” NBC News, 7/6/2020
  • Robert Barnes, “Supreme Court says states may require presidential electors to support popular-vote winner,” Washington Post, 7/6/2020

DON MCGAHN

  • Ellen Weintraub, “Trump’s pick for White House counsel is wrong for the job,” Washington Post, 12/9/2016
  • Nancy Cook, ‘‘He’s Going to Be an Enabler’ As White House counsel, Don McGahn’s job is to keep Donald Trump in line. But he shares his boss’ hard-charging reputation,” Politico, 2/21/2017
  • Bradley A. Smith, “‘Deep FEC’ Goes After White House Counsel Don McGahn,” National Review, 3/9/2017
  • Katelyn Polantz, “Appeals court says Don McGahn doesn’t have to testify in major win for White House, CNN, 2/28/2020

BUTTON: FREDERICK DOUGLASS

  • Frederick Douglass, “What to the Slave is the Fourth of July,” TeachingAmericanHistory.org, 7/5/1852 
  • “Frederick Douglass’ Descendants Deliver His ‘Fourth Of July’ Speech,” NPR, 7/3/2020
  • “Frederick Douglass statue ripped from base in upstate New York,” CBS, 7/6/2020

Preet Bharara:              From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Ellen Weintraub:          Once you undermine that basic faith that people have in their democratic institutions, that things are going to be done in a regular order, and the votes will be counted properly, and they’ll be counted accurately, and people will have access to exercise their choices in a free and fair manner, when you undermine the trust in that system, it is very hard to build back up. So, I really feel that this is a very front time for our democracy, and I feel an obligation to stand up for truth and facts and to make sure that people understand what’s real and what’s not.

Preet Bharara:              That’s Ellen Weintraub. She’s a commissioner on the US Federal Election Commission, the FEC, where she served since 2002. This week, we diverge a bit from the usual format of Stay Tuned to bring you a special segment. Before turning to my conversation with FEC Commissioner Ellen Weintraub, I’m joined by my friends, Lisa Monaco and Ken Wainstein. Lisa and Ken have served at the highest levels of government, and their career paths are strikingly similar. Both are alums of the D.C. US Attorney’s Office. Both headed the DOJ’s National Security Division. Both are Chief of Staff to then FBI Director Bob Mueller, and both served as Assistant to the President on Homeland Security and Counter Terrorism.

They joined me today because they now add another impressive credential to their sterling resume, co-hosts of CAFE’s new podcast, United Security. This biweekly podcast will be exclusively available for members of the CAFE Insider community. Just as an Anne Milgram and I breakdown politically charged legal matters, Lisa and Ken will be making sense of political charge national security issues.

The podcast launches tomorrow, and for a limited time, you can sign up to listen to the full episode for free at cafe.com/united. That’s cafe.com/united. If you received emails from CAFE, then check your inbox. You’ll find the link in the July 10th issue of the CAFE Brief Newsletter. Now, my conversation with Lisa and Ken.

Lisa Monaco and Ken Wainstein, it’s good to be with you. Thanks for joining me.

Ken Wainstein:             Great to be here.

Lisa Monaco:                Great to be here with you, Preet.

Preet Bharara:              You guys doing okay?

Lisa Monaco:                Doing great.

Ken Wainstein:             All good.

Preet Bharara:              I’m very excited. I don’t know if you can tell from my voice how excited I am that we’re launching this thing. We’ve been talking about it for a long time. Perhaps we can begin with a legal issue, and maybe you can specify the statute because you guys are so smart when it comes to the law. Where is it written in federal law that former high-ranking government officials are required to start a podcast? It is there, right?

Lisa Monaco:                It’s absolutely there was Preet, a tandem as I recall, a Preet amendment.

Preet Bharara:              Yeah. I [crosstalk]

Ken Wainstein:             I just took it at face value when you had my arm behind my back and telling me that I had to do a podcast, that there was something in the law.

Preet Bharara:              You believe in the rule of law. I appreciate that about you, Ken. So, how were you able to be persuaded to do this podcast about national security and at this time?

Lisa Monaco:                Well, Preet, I’d like to wax on about your persuasive powers.

Preet Bharara:              Please do.

Lisa Monaco:                Instead, I’m going to say that I was really convinced to do this because I wanted to spend more time with my friend Ken.

Preet Bharara:              Nice. Ken, that’s a compliment.

Ken Wainstein:             Likewise. Absolutely. Though, I will not bypass the Preet persuasive powers because I said somewhat jokingly that you had my arm behind my back. That wasn’t a complete joke. I remember being at a conference with you a few months, actually, nine months now, and you did have me cornered in the corner of a bar, and you’re threatening to cut off my drink tab unless I agree to do a podcast, and it worked.

Preet Bharara:              You’re a very smart man.

Ken Wainstein:             Look, I don’t know that I wanted to do a podcast for the sake of doing a podcast, but the opportunity to do it with Lisa, and work with you and your incredible team, but also to do it in a context and in a way that is showing what does and should unify us more than what does unfortunately divide us these days was, that was pretty appealing. That seems to be the way it’s played out. I’m excited to be a part of it.

Preet Bharara:              Further to that, we spent some time figuring out what the title should be, and your podcast about national security is entitled United Security. You want to talk a little bit about why you guys arrived at that? I think it’s further to what you were saying.

Lisa Monaco:                Well, I’ll chime in here. I think Ken and I both wrestled with a number of different potential titles. We knew we wanted to hit upon the theme of unity and the need to have unity in particular on national security issues. I know for me and here, Preet, I’ll play to your noted affection for words when I was thinking about what should the title of this be. The phrase United Security seemed to make a lot of sense because if you think about it, and if you look at the dictionary, united is about joining for a common purpose.

I think Ken and I, Ken will speak for himself, but I think Ken and I both felt like we’ve lost something in the discourse these days when it comes to national security issues, and we’re losing a lot of reason to debate, and there’s too much shrillness in the debate these days. It seems like we need more space for a recent discussion of complex issues, and trying to find some common ground on them.

Ken Wainstein:             Yeah, and I’d concur that completely. Look, there’s the old saw that politics should stop at the water’s edge. Look, none of us is naïve, and is going to think that national security matters. There’s nothing political about national security matters, but there really is a reason why we should believe and demand of our leaders and government officials that as best they can, when you’re talking about securing America against overseas adversaries and threats, we really should be united. There might be difference in the way we perceive the means to protect our country, but the principles, the underlying principles are the same, and we all share them.

So, we really ought to be able to talk about these issues in a nonpartisan, non-adversarial way, and that just doesn’t seem to be the case these days. This is our small effort to try to recover that notion and put it into practice.

Preet Bharara:              So, you guys aren’t going to scream at each other every week?

Ken Wainstein:             Oh, yeah.

Lisa Monaco:                Well, we mi ght do a little bit of screaming at each other, but probably not that much. I mean, look, the other thing is we want to give folks a window into some of the common experiences Ken and I had in our prior roles that we’ve had, right? We have parallel jobs in different administrations, but very similar experiences when it comes to trying to think about what it takes to secure the United States, what it takes to speak rationally and from a fact-based perspective about these issues. So, we’ve got a lot in common that I think we want to share with folks.

Preet Bharara:              You’ve both been in all the same rooms.

Lisa Monaco:                Indeed.

Preet Bharara:              … and the same skiff. So, what do you think of the major national security issues that you’ll be talking about and then America will be focused on in the coming months?

Ken Wainstein:             Well, I’ll go ahead and start. Look, I mean, one of them is what we were just talking about, political division and the politicization of national security and the impact it’s had on our ability to actually project our interest overseas, and to secure ourselves against external threats. That’s a big issue. We’ve seen it play out.

Look, this isn’t about casting blame against one party or another or against one elected official or another, but it’s about calling out the situation that we’re in, seeing the impact it’s having on our policies, on our institutions. Right now, the intelligence committee is under assault, and the impact that’s having and it’s having on our readiness to address our intelligence needs, this kind of thing.

So, that’s one of the issues that we’re going to be dealing with, and I think that’s actually, unfortunately, a constant throughout all the various policies that we discuss that politicization backdrop is going to be there and we’re going to try to get beyond that and really do an identification, a balancing of the policy interest in each of these situations that we see, whether it’s the US and Russia relationship, whether it’s how to ensure election security and the like. So, that’s going to be a constant refrain.

Lisa Monaco:                I think we also, Preet, want to make sure that we don’t take our eye off the ball both in the things that Ken and I are discussing in the issues we want to discuss with listeners, and whether you filled in questions and the like because there’s so much these days in the news that is driven by the latest tweet or the latest outrage. I think Ken and I both worry that we’re sometimes missing a discussion of some really important issues that are getting drowned out in the daily discord.

Preet Bharara:              Yeah. It’s also the case. Anne Milgram and I are, our friend Anne and I have this experience when we do the CAFE Insider Podcast. You read about a story on the air, it gets three minutes of attention on a cable news, and no one ever goes deep and explains it. You never get anybody who had the experience like you guys have had to go deep. I think national security issues sometimes, I mean, they’re complicated for me. I’m very excited about this because I’m hoping to learn a lot from you guys personally myself, and I think a lot of other folks will, too.

So, there’s an explanation, an explainer function in this, too. You’ll hear a news flash that there was an attack on Soleimani, for example, from some months ago. A lot of the discussion you see is very superficial or you get a lot of politicians who are currently involved in trying to win reelection who have a particular talking point they want to get across, but you don’t often have arm’s length dispassionate discussion on the part of people who have been in the position to make those decisions before talking about this stuff. So, I’m looking forward to hearing you guys explain a lot of stuff that I don’t fully understand.

Lisa Monaco:                I think we want to do the explaining, and we also want to get past the point counterpoint, right? Do more than the 30-second soundbite, and every national security issue and foreign policy issue that makes a headline these days or creates a popup on your phone really needs, I think, both the explainer function and to get beyond the partisan talking points.

Preet Bharara:              Do you guys have a view of what the greatest threat, and I’m wondering if you agree on it or not, the greatest national security threat we should be concerned about in the coming months and years?

Lisa Monaco:                At some level, I think it is our dysfunction and paralysis, our inability to come together on issues to get beyond the politics, the divisiveness. At some level, I think that poses a really significant threat to our ability to respond in a way that is going to secure us. You can look at some of the issues with the coronavirus response as a really good example of that.

Ken Wainstein:             Yeah, and just sort of a sub-answer to that is process matters, and not to sound too wonkish, but it really does, especially in the national security space. So, whether it’s COVID and the process that’s in place to deal with the COVID situation at its very onset or a bounty situation with the Russians, is there a process in place? The interagency process in the federal government, which is a well-oiled, should be a well-oiled machine for taking incoming threats like that, making sure that all the players throughout the federal government and, if necessary, state and local governments are at the table bringing to bear all the resources and assets they have in coming up with a good sound decision making process, results, and action plan.

Is that in place? Are the right people in place? What would have happened when Lisa and I were involved in interagency process in our respective administrations, and how did that work or not work? What lessons would we draw from our experience that could be applied to the threats and crises of today?

Preet Bharara:              You guys both had incredibly important jobs, stressful jobs, a lot of the same jobs. I was just thinking before we came on and started taping, Ken, I think I actually met you when you were the US Attorney in D.C. and had been nominated to be the first head of the National Security Division, subdivision of the Department of Justice, that was called for by the 9/11 Commission, and talked to you a lot during your confirmation process.

Then Lisa, you became the National Security Division Chief a few years later, the first woman to hold that role. Then you had other roles that it would take me the entire time we have together to go through your resume.

The weird thing is it’s so parallel. Did you guys meet in a prior life? Are you related in any way? My real question is, for each of you, has anyone of those particular jobs you’ve had in National Security on law enforcement, did any one of those jobs inform you or inform your views in how you go about addressing national security issues more than any other?

Lisa Monaco:                First of all, I joke that because I’m a lot shorter, I’m the mini-me version of Ken Wainstein. So, I don’t know if he takes that as a compliment or not, but for me, there’s a thread that runs through all the jobs that I slash Ken and I have had, and the sense of needing to balance both the responsibility of government to respond to threats, how you talk about those issues, how that in and of itself becomes an issue of security.

So, for instance, we both spent the majority of our careers in the Department of Justice, which has real ethos about not talking outside of the particular court documents that maybe you’re engaged in. When I went down to the White House, it was very different approach, right? I learned how to talk about security issues publicly. That was as much a part of the Homeland Security Enterprise as the operational aspects of it. So, the responsibility of government to actually address the public’s fears about their security is a thread that I think has run through all the jobs that I, we have had.

Ken Wainstein:             One thing that will probably resonate with you, Preet, is we’re all prosecutors. One thing you have to do as a prosecutor is your job is to put together cases and prosecute, hopefully, effectively and secure convictions, but your job is also to be looking 360 at an issue and make sure that due process is being protected, that the defendant’s rights are being adhered to, et cetera, which I think is good training. We all do that to greater or lesser degree, but it’s good training because it makes you then look at issues from all sides.

I don’t pretend to be more open-minded than the next person, but it was good training for us to then import into our national security experience, and I think we all, post-9/11, in our own way went from being prosecutors to moving over the national security space.

So, at least for Lisa and I, we both headed up in the Homeland Security Council. I mean, our job was to get all the people, all the cabinet officers and others who had a role in a particular national security issue around the table talk about how to deal with the issue, what the plan of action should be, and try to see it from every agency’s perspective. That’s hard to do, but that was our job.

So, I think if there’s one thing when talking about our common experience between Lisa and me, it’s that, that we tried to do that. Once again, sometimes failed, sometimes succeeded, but it helps and I think it’s also helpful when now being on the outside watching some of the national security issues as they play out within the government.

Preet Bharara:              Is there anything you expect to disagree on?

Lisa Monaco:                I think Ken and I have a similar philosophy about the role of public service, the role of government in providing security for the country and for the people, but I think we might differ in the relative responsibilities of institutions, right? We might see some differences there as to how much power government should have versus the individual, where should the private sector come in and take some more responsibility, maybe on some privacy issues at the margins, but overall, I think our philosophy is similar, but I don’t know. Maybe this is the first opportunity for Ken to disagree with me.

Preet Bharara:              Yeah, disagree on something.

Ken Wainstein:             Yeah. Look, we talk things through and as fellow podcasters but also as friends, and have done so for years, and we take a different angle to each issue. I think, though, Lisa is right. We look at the principles the same way. So, we have a lot more common ground than uncommon ground. Maybe the solutions that we bring to bear might differ in degree.

Also, don’t underestimate the value of experience. We each, even though we’ve had almost identical jobs, we’ve dealt with different crises, different situations, and every one of those gives you an understanding of the extenuating circumstances of that kind of issue. So, Lisa, as soon as she got in an office had to deal with the Boston bombing, and all the peculiarities of that.

So, when she sees something like that now, she’s going to be able to draw on those experiences in a way that maybe I can’t or she dealt with the Ebola. So, I think her COVID observations are particularly valuable because she went through that in a way I didn’t, and I had dealt with other situations.

So, I think that we do see things differently. Though, when you peel it away, it’s often not because we have different values or principles, but maybe we’ve often had different experiences that inform the policy prescriptions we come up with as we address issues.

Preet Bharara:              Let me ask you guys a simple yes or no question to see if you agree or disagree. Should the President of the United States read the President’s Daily Brief?

Lisa Monaco:                Emphatically yes.

Preet Bharara:              Ken?

Ken Wainstein:             Yeah. One of the first responsibilities of being a president.

Preet Bharara:              That was easy. You don’t have to spend a lot of time on that on the podcast.

Lisa Monaco:                Yeah.

Preet Bharara:              So, the first episode of United Security will be available tomorrow, Friday. You want to give us a preview of the kinds of things that we’ll be hearing about?

Lisa Monaco:                Look, I think people who tune in to the podcast should expect to hear us discuss the latest issues about the Russian bounty story, right? This is the discussion about intelligence that was provided to the president in his daily brief, about a Russian plot to put bounties on US service members in Afghanistan, and hear us talk about what does it mean for a president to get that kind of information in the President’s Daily Brief, how did Ken and I both who are recipients of that intelligence product every morning, how did we deal with that. What are the types of things that should happen when a president gets that type of information? Was the decision making that goes on or should go on after receiving something like that?

Then we’ll talk about what’s the latest in the news about the coronavirus, the latest developments in coronavirus, what that means for people going back to school, going back to work? What does it mean for the challenges we’re going to face for the next couple of months because there’s a lot of new developments in that both on the science and on the policy front?

Ken Wainstein:             Yeah, and I think we’ll also touch on the whole Bolton Book issue, and not the kiss and tell anecdotes that it lays out.

Preet Bharara:              Have you read it?

Ken Wainstein:             There’s a [crosstallk] about that in the press. I’ve read bits of it, but I’ve not read it. I will admit to not having gotten to it yet. What is an interesting back story is just the fact of it, the fact that you have the national security adviser and he’s putting out a book within a fairly short time after departing office. The issue that raises at the intersection of his first amendment rights to tell his story and the government’s need to protect national security information and secrets and how that issue plays out with the publication review process that is now a matter of litigation, and why there is such a process, and how it evolved.

It actually sounds a little wonkish, but it’s actually a fascinating case study in the balancing of first amendment interests and the absolute imperative to protect government’s secrets. So, we’re going to talk a little bit about that as well.

Preet Bharara:              Yeah. Absolutely. So, I’m looking forward to it. I was going to say, as I said in the beginning, I’m very excited about this. We’ve all been friends for years and years. So, it’s nice to be working with you again in this capacity. So, to everyone else who’s listening, make sure you check out the new podcast, United Security. It will be published Friday morning. As always, you can write to us, including to Ken and Lisa at [email protected] with any thoughts and questions.

Lisa and Ken, thanks again.

Lisa Monaco:                Thanks so much, Preet.

Ken Wainstein:             Thanks, Preet.

Preet Bharara:              There’s more coming up. Stay tuned.

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Ellen Weintraub has served as the Commission on the Federal Election Commission since 2002. In her tenure at the FEC, she’s been the chair three times, most recently in 2019. Weintraub is an outspoken advocate for campaign finance reform and has developed quite a powerful Twitter presence, including a recent 66 tweet thread about the security of absentee ballots, refuting President Trump’s claims of mail-in voter fraud. As we approach the election this November, there’s one thing that we can count on, and that’s uncertainty. That’s why there’s never been a time to have Ellen Weintraub on the show with me today.

Commission Ellen Weintraub, thank you so much for being on the show.

Ellen Weintraub:          It’s my pleasure.

Preet Bharara:              How are you? You’re doing okay?

Ellen Weintraub:          I’m doing fine. My family is safe and healthy and really there’s no complaints beyond that.

Preet Bharara:              So, we’re going to get in to some of this in a moment, but you sometimes get criticized and get in trouble for speaking your mind. Are you going to get in trouble for being on this podcast?

Ellen Weintraub:          Possibly. I suppose it depends on where the conversation goes, but-

Preet Bharara:              All right. Well, that’s good. That’s good. I like that.

Ellen Weintraub:          Only if it’s good trouble, though. So, that would be okay.

Preet Bharara:              Good trouble. I think John Lewis would talk about good trouble.

Ellen Weintraub:          Yes.

Preet Bharara:              All right. So, you are a commissioner of the Federal Election Commission, the FEC. So, can we start with some basics?

Ellen Weintraub:          Sure.

Preet Bharara:              What does the FEC do? What are its powers? What’s the purpose?

Ellen Weintraub:          The Federal Election Commission was set up in the wake of Watergate for people who still remember back that far to follow the money. That was our primary purpose was to administer and enforce the laws governing federal campaign finance and make sure that the public is informed about where the money is coming from, and where the money is going, make sure that the limits and source restrictions are obeyed. Disclosure is our core mission, but we’re also a law enforcement agency. We issue advisory opinions. We provide advice to anybody who wants advice on how the law works. We issue rule makings. We also have semi-adjudicative function. We do enforcement actions. Our lawyers will investigate complaints. Anybody can file a complaint and our lawyers will take a look at it. If there are four votes on the commission to investigate, then we can do an investigation.

There are six, supposed to be six members of the commission by law, and no more than three can be of any one political party. So, all decisions have to be bipartisan. It requires four votes to make most major decisions at the FEC, and that is regardless of how many commissioners there are. So, even if there are an odd number of commissioners, you still need the same bipartisan four vote majority in order to get anything done.

Preet Bharara:              Does the FEC keep databases on campaign finance spending? Is that you guys, too?

Ellen Weintraub:          Yes. Yes. All of the information that you know, everything that you read about how much money is being raised and spent by federal candidates, super PACs, political parties, all of that information comes from our database. People report to us. The committees report to us. We put it up on the web, and then journalists, and analysts, and the general public can get access to it.

When the agency was first instituted back in the 1970s, people had to come in to our public records room to find this data out, but now, anybody can access it on their computer at fec.gov.

Preet Bharara:              So, how big is the staff? It seems like a big administrative undertaking now.

Ellen Weintraub:          Well, we have … I think right now we have about 315. It has varied over the years that I’ve been there between the low 300s to the high 300s.

Preet Bharara:              How do commissioners get appointed?

Ellen Weintraub:          Nominated by the president and confirmed by the senate.

Preet Bharara:              There’s a tradition of there being usually, I know that’s fallen by the wayside from time to time, of a democratic and republican pair being appointed at the same time. Is that true?

Ellen Weintraub:          That is the way it used to work. It hasn’t been working that way of late. Of course, right now, we don’t have a quorum. We only have three commissioners right now.

Preet Bharara:              Ellen Weintraub has served as a commission on the Federal Election Commission since 2002.

Ellen Weintraub:          We had only three commissioners for about nine months, and then about a month ago, a fourth commissioner was appointed, and everybody was very excited to get back to work, and get our job done, and then just last week, another commissioner decided to leave. So now, we’re down to three again. There’s been a nomination, I believe, or actually I think it’s just been an intent to nominate at this point. I don’t think there’s been a formal nomination yet of the fourth commissioner.

Preet Bharara:              So, when you don’t have a quorum, and there’s only three of you, do you just play golf? Do you report to duty? I mean, what do you do?

Ellen Weintraub:          I don’t. Well, there’s still a small federal agency to run. So, there are still budgetary and personnel and all those kinds of management decisions that have to be made for any organization, but our staff continue to do their jobs, which means that we continue to get reports from our staff with recommendations on how to proceed in enforcement matters, and audits, and how we should think about advisory opinion requests that might be pending. I keep reading those documents, and preparing to deal with them when we get a quorum.

Preet Bharara:              Okay. Good. So, take us through an example, a simple garden variety example of a breaking of a federal election law that your commission would address. So, for example, if a candidate for congress, it becomes known that that candidate has raised from an individual way more than the maximum allowed, and it comes to the attention of the FEC, what happens?

Ellen Weintraub:          Okay. So, that could come to our attention one of two ways. One, they might not know what the contribution limits are, and so they might report that on their regular report to the commission, and our analyst would pick that up and send out a request for additional information and say, “Hey, looks like that’s an excessive contribution. Did yo know that?”

Preet Bharara:              Wait a minute. Does that happen?

Ellen Weintraub:          It does.

Preet Bharara:              Does somebody who’s running for congress and actually reports the illegal contribution?

Ellen Weintraub:          Yes. Yes. It does happen.

Preet Bharara:              Wow. Can you tell us? Is that anybody we know?

Ellen Weintraub:          I don’t want to talk about specifics, but, yes. It’s often less experienced candidates who may be running for the first time. Maybe they read something about Citizens United and they thought all the limits were gone, and so they could accept anything they wanted to.

Preet Bharara:              We’re going to get to Citizens United, too. Can you remind everyone? What are the federal limits?

Ellen Weintraub:          Right now, it’s $2,800. Any person can give up to $2,800 per candidate per election. So, $2,800 for the primary, $2,800 for the general. It’s $5,000 to a traditional PAC, which makes contributions, and it’s unlimited to a super PAC.

Preet Bharara:              Got it. Okay. So, what’s the second way you might find out about a campaign finance violation like that?

Ellen Weintraub:          Somebody might file a complaint. That’s actually most of our enforcement docket comes from complaints. As I said, anybody can file a complaint with the FEC. It has to be notarized. It helps if there’s some information attached to it. If it’s too speculative, then there’s not much we can do with that, and it will probably get rejected. Then it goes to our lawyers. The complaints go to our lawyers, and they take a look at it.

We’ll write up what we call a first general council’s report, which goes to the commission with a recommendation from the lawyers that either says we should dismiss this, we should investigate this or based on the complaint and the response because we always give the person who’s being complained about an opportunity to respond, based on all the information, we can already tell the law has been violated, so let’s just go straight settlement negotiation. It’s what we call conciliation. That happens sometimes, too.

Preet Bharara:              Then let’s say the determination is made, that it was an intentional violation of the rule. What do you do about it?

Ellen Weintraub:          Well, as I said, it takes four votes to do anything. Then we might investigate if we feel that we need more facts. We have subpoena authority. We have lawyers, we have auditors, we have investigators, we have a lot of skilled people at finding facts or as I said, if it’s completely clear from the get-go that the law was violated, then we might go straight into negotiation. The conciliation agreements usually have a recitation of the law and the facts.

Often, people will acknowledge that they violated the law. Sometimes they will insert what we call a contention language, where they say, “Well, respondents contend that they didn’t realize they were violating the law.” Most violations are not intentional. We do get some.

Preet Bharara:              That’s [crosstalk]

Ellen Weintraub:          Yes. Yes. We do get some, but-

Preet Bharara:              Do you make referrals to the Department of Justice?

Ellen Weintraub:          Yes. If it’s knowing and willful, that comes at a slightly later stage of the proceedings. If we find probable cause to believe that the law was violated, we can then make a referral to the Department of Justice. Sometimes we’ll just send something over there. We’ll decide it’s more appropriate for them and for us. Sometimes they send things to us because they say, “Well, there’s no criminal violation here, but there might be a civil violation.” We have exclusive civil enforcement authority.

Preet Bharara:              Do you need four votes just to make a referral?

Ellen Weintraub:          Yes.

Preet Bharara:              Is there anything you guys can do without four? I’m just trying to get a sense of … I’m curious what your week is going to look like with only three.

Ellen Weintraub:          Well, other than having formal meetings of the commission, my week doesn’t look that much different with or without a quorum because the bread and butter of my day is I get recommendations from staff as to what the commission ought to do, and then I will read those and review them, and dig in to the law with my own personal staff, and try and figure out if I agree with what our lawyers are suggesting or not or if I want to make suggestions for changes. I’m still thinking about rule makings that we could do and planning for when we will have a quorum again, which I hope won’t be another nine months that we go without a quorum, but I can do a lot of work in anticipation of the final decision, so that once we get a quorum, obviously, the new commissioner will have to get up to speed, but if the rest of us already know what we want to do, that will really help expedite matters once the quorum is restored.

Preet Bharara:              So, even when you have a quorum, let’s say you have all six, which is I guess a privilege in recent history, how do you folks get along? How functional is the FEC because I think some people sometimes suggest that it doesn’t work perfectly?

Ellen Weintraub:          I would be one of those persons who would say it doesn’t work perfectly. It’s not a question of getting along. I mean, I get along just fine with everybody, but the commission as an evenly divided body, it’s not surprising that as Washington has become more polarized, that polarization has really played out in a nonproductive way at the FEC.

When I first started at the commission, there was a lot of effort that went into trying to find agreement, trying to find four votes for a particular proposition just so we could clarify the law, answer people’s questions, make sure people knew what the rules of the road were and make it clear when those rules had been broken. Many times, the results were not results that any individual commissioner might think was perfect, but it was close enough to form a four-vote consensus that something that four commissioners thought they could live with for the sake of answering questions and clarifying the law.

Starting in 2008, there’s major turnover on the commission, and the new commissioners were ideological than the previous batch of commissioners. It became just a lot harder to find that common space. I would have to say I did not see as much interest in people finding that common ground.

One would think that the commission was just set up for constant gridlock with the three-three balance, but the truth is that for most of the commission’s existence, split votes were fairly unusual. It happened between 1% and 3% of the time. That’s it. The rest of the time, we found a way, the commissioners found a way to move forward.

Preet Bharara:              How often does it often more recently?

Ellen Weintraub:          Now, I mean, different people have come up with different ways of counting it, but it’s more on the order of 25%-30%, and they are the most important cases. They’re the most … It’s easy to agree on cases that obviously don’t present any infractions that we can all agree that this should be dismissed. It’s harder when the issues are more complicated, and some commissioners believe that a vigorously enforced set of campaign finance laws will intrude on people’s first amendment rights, will intrude on their ability to raise and spend money and, therefore, to get their political message out.

Other commissioners believe that we do have still some limits in the law, and they’re designed to prevent corruption, that very large contributions as the Supreme Court has held have the inherent risk of corruption, and we need to make sure that those rules and laws and lines are obeyed, and that the public is informed about where money is coming from, and that we don’t allow dark money to flourish in our system, so that people can’t really tell who’s pulling the levers of power and who has influence and who doesn’t. This is all important information for the voters to know.

Preet Bharara:              Is that difference of opinion and difference in perspective, does that fall along party lines generally?

Ellen Weintraub:          It does. It falls very neatly along party lines.

Preet Bharara:              With the exception possibly of the late Senator McCain.

Ellen Weintraub:          Well, I mean, I’m only talking about commissioners at the FEC. So, there are republicans who actually do believe in campaign finance regulation, but they’re just not commissioners at the FEC.

Preet Bharara:              Do elected members of congress and other officials, elected officials, want the FEC as a general matter to be robust or not?

Ellen Weintraub:          That’s hard to say.

Preet Bharara:              Am I going to get you in trouble? Is this one of those course?

Ellen Weintraub:          No. I mean, I don’t want to speak for other people. I don’t want to try and get into other people’s heads, but my colleagues would say that they have a strong ideological concern about protecting people’s first amendment rights. I also care about protecting people’s first amendment rights, but I think there are some laws that have been upheld as constitutional even by a Supreme Court that’s not terribly friendly to campaign finance regulation, and that we need to abide by them.

It depends on the issue. There are some issues where we find more common ground on. Again, with new commissioners coming onboard, everything’s up in the air. I don’t really have a good feel for where their lines are going to be, but I can say over the past number of years, we’ve had a little bit more success on issues involving foreign national allegations, allegations that foreign nationals are spending money on our elections. That’s something that I think is of general concern. The commission has agreed to prioritize those kinds of complaints.

We haven’t agreed on all of them, but we’ve agreed on more of them than we do in other areas. When it comes to issues like whether a 501(c)(4) organization has crossed the line and is no longer engaged in issue advocacy, but is really set up for the major purpose of trying to influence the election and, therefore, should be reporting to the FEC and disclosing their donors.

We seldom agree on that. We seldom agree on cases alleged coordination between super PACs and outside spending groups and candidates. There are just some issues that we almost never find common ground on.

Preet Bharara:              On the issue of coordination, why would that be a divergence point?

Ellen Weintraub:          I don’t know. It seems obvious to me that some of these groups are coordinating. So, I don’t know why we can’t find agreement on that.

Preet Bharara:              So, you said before that people do that long, and maybe that was not the right way for me to phrase it, but I have found it unusual that there are members of the FEC from time-to-time and you’re one of them who make public remarks criticizing other members of the commission. You did that at one point when Don McGahn, your former colleague, was about to become White House Counsel. The most recent chair, Caroline Hunter made a lot of remarks critical of you. Is there something odd about that? I mean, even on the Supreme Court, which is, obviously, a different kind of institution, the various members can be scathing with respect to the other people’s opinions in their written decisions, but you don’t see the public criticism of their colleagues. Do you have a comment on that?

Ellen Weintraub:          Well, I think it’s really just an extension of the statements. I mean, people, not that many people read our statements. If you read the statements, then you would see there’s a lot of criticism back and forth on both sides. I think that from my perspective, I’ve been very frustrated that we can’t agree on some issues that I think really are fairly obvious. I mean, to take the issue of coordination where you said, “Well, why can’t you agree on that?”

Well, we’ve had outside groups that are set up established by close friends, relatives, parents, siblings of the candidate or former staff people of the candidate. They’re taking video off of the candidate’s website. They’re sending messages to each other on Twitter. We’ve seen all sorts of bizarre formulations that in anybody’s common sense, interpretation of what’s going on.

People would say, “Well, of course, that’s coordinated.”

We actually had an advisory opinion where somebody came in and said, “Well, you have these rules that interpret what the statutory ban on coordination means, and there are stricter rules within certain time limits. So, if I back myself up before those time limits, can I coordinate then?”

I mean, he basically said it in the question, “I’m going to coordinate it. I’m just going to do it outside the time limits.”

Half of the commission said, “Well, that still sounds like coordination, which the statute prohibits. Yes, the regulation provides more detail, but the statute still prohibits coordination, which you have told us you’re going to do.”

So, we said, “Yes. That’s coordination,” and our colleagues on the other side of the table said, “No, it’s not. They can use the way the rules are written to coordinate to their heart’s content.” So, that’s very frustrating.

Preet Bharara:              I will tell you from a former prosecutor’s perspective, the idea of being able to prove coordination and how to know when people are coordinating to me seems almost impossible without subpoena power, without wiretaps, without getting people’s electronic communications. When you have someone setting up what is purports to be an independent PAC or something else, and it’s a close friend or a relative, it just seems to me, and maybe I’m very cynical about this, it seems very easy for people to take a walk in the park and coordinate all day long, and in no way would an agency like yours be able to find out about it. So, it seems like an exercise in trust that maybe is not warranted in this area.

Ellen Weintraub:          Well, what you’re suggesting is that it would be happening, but the agency wouldn’t be able to prove it, which is-

Preet Bharara:              Yeah. I mean, that’s my cynical view about how people conduct themselves, and particularly given our experience with corruption in New York, it seems to me it’s a very difficult thing to prove coordination. When you get the kinds of things that you’re talking about, which would be unusual because if people … You can very intelligently hide your coordination it seems to me. When they’re not even capable of doing that, that’s pretty decent common sense evidence that it is coordination.

Ellen Weintraub:          Well, as I said, in this case, they basically came in and told us that they were going to coordinate. So, I mean, are we supposed to ignore that? The other aspect to this is there’s an initial determination as to whether we’re even going to investigate. Yes, it might be difficult to prove some of these allegations, but then does that mean that you throw your hands up at the beginning and say, “Well, we’re not even going to try. We’re not even going to investigate,” because we can’t get the four votes to even launch an investigation in most of these cases.

Preet Bharara:              This four-vote thing, we think that.

Ellen Weintraub:          There has been some interesting thinking on that. There is a proposal, which I think would be a great idea that the presumption should be switched, that rather than it taking four votes to start an investigation, that it should require for votes to block an investigation if the professional nonpartisan staff thought one as warranted, that they could go ahead and do that.

Preet Bharara:              Also, it seems to me, and I haven’t studied extensively how other commissions work, but it seems to me that four votes, which is a majority if you have all six, makes sense for certain final determinations, but for other things like the commencement of investigations are things that fall short of a final determination, you could do that on a fewer number of votes.

Ellen Weintraub:          That’s exactly the point of this proposal, that you would at least get the information. You’d get the investigation going, assuming that the professional staff thought one was warranted. When all that information was assembled, it would come back to the commission, and then you would have the four-vote determination as to whether the law had been violated, but at least we’d have a record in front of us.

Preet Bharara:              So, you make a lot of public statements and you do interviews as I said at the outset. You have an active Twitter account, which I enjoy.

Ellen Weintraub:          Yes. Thank you.

Preet Bharara:              I’m wondering how you conceive of your role as an FEC commissioner. You’ve come up on the radar screen of a particular congressman, Representative Rodney Davis, who has complained about the kinds of statements you make, and you responded with a very strong statement of your own, somewhat like this statement. It begins with the sentence, “I will not be silenced,” and I think it ends with the statement, “I will not be silenced.”

How do you think about your public statements, and what do you make of people who say that you should keep your mouth shut a bit more because your public official, and in some ways you’re like a judge who’s going to come into consideration of enforcement matters, and it may present a conflict of some sort for you to be making somethings outside of your official role?

Ellen Weintraub:          I think it’s very much within my official role. I don’t make any statements about individual enforcement actions that are pending before the commission. What I talk about is state of the law. I think that I have an important role in helping to explain the law, particularly when the commission is so gridlocked and can’t do its job in the normal ways. I think that I am somebody who’s pretty expert in the law, and I have a role in making sure that people understand where the limits are and where the lines are.

What people complain about is they say, “Well, you should really not talk about anything that’s in front of the commission because,” which I don’t, “but you should also not talk about things that aren’t in front of the commission because that’s none of your business. That’s outside of your wheelhouse.”

Again, it’s called the Federal Election Commission. Everything I talk about is related to elections. I also talk about voting because that is the way that elections happen. All of the information that we collect is collected for the expressed purpose of informing the voters. If voters can’t vote, there’s no point to anything that we do. I’ve never been one to get bugged down in the trees and not see the forest.

I’ve been working in the field of protecting the integrity of our government and our elections for my entire career. It’s very important to me, and making sure that everyone has the right to vote and can exercise that right freely and fairly and equally. That’s important to me, and I’m not going to allow people who just don’t like what I have to say and say, “Well, we don’t like your opinion, so you don’t get to say them.”

It is ironic that the people who most complain about my speaking claim to be strong first amendments advocates. They’re very strong advocates for the right of corporations to speak, not so much for me, but as I’ve said before, I’m not going to be silenced. I think that I have a platform here, and that if that is the only way that I can help to move the ball forward is by making public statements, then that’s the route that I will choose.

Preet Bharara:              Let’s talk about voting because, obviously, you’ve mentioned it, and it’s top of mind for everyone I think who cares about the country and about the election. My first question is with respect to the FEC officially, does it have any role in how people vote or protecting their right to vote?

Ellen Weintraub:          We don’t have a formal role in that. As you know, the elections are administered at the state and local level.

Preet Bharara:              It’s something that you care about and it’s something you have some expertise in. Since we’re on the subject of your public statements, you have taken the president to task a little bit because our president has made statements repeatedly about how mail-in balloting would be super fraudulent.

President:                     I think mail-in voting is horrible. If I screw up-

Ellen Weintraub:          You voted by mail-in in parties election last month, didn’t you?

President:                     Sure. I could vote by mail for the-

Ellen Weintraub:          How do you reconcile that?

President:                     Because I’m allowed to. Well, that’s called out of state. You know why I voted? Because I happen to be in the White House, and I won’t be able to go to Florida to vote. Let me just say-

Ellen Weintraub:          [crosstalk] outside the state.

President:                     Well, there’s a big difference between somebody that’s out of state and does a ballot and everything is sealed, certified, and everything else. You see what you have to do with the certifications, and you get thousands and thousands of people sitting in somebody’s living room signing ballots all over the place. No. I think that mail-in voting is a terrible thing. I think if you vote, you should go and even the concept of early voting is not the greatest because a lot of things happen, but it’s okay. You should go and you should vote. I think you should go and you should vote.

You look at what they do where they grab thousands of mail-in ballots and they dump in. I’ll tell you what, and I don’t have to tell. You can look at the statistics. There’s a lot of dishonesty going along with mail-in voting, mail-in ballots.

Preet Bharara:              Back in May, he tweeted, “There’s no way, zero, that mail-in ballots will be anything less than substantially fraudulent,” and I think at that time and even more recently, you have contested that view. I don’t believe in that view myself. We’ve had other people on the show talk about that.

On the first of July, you tweeted, “There are 125 days until election day. The earth is still round, and there is still no basis for the conspiracy theory that #votebymail will corrupt the election.” You want to elaborate on why you’re so confident that vote by mail is okay?

Ellen Weintraub:          Look, this is going to be a challenging election. I think everybody agrees on that. Basically, we have two options. We can vote by mail or we can vote in-person. That’s really the ballgame. What we’re finding in this era of COVID-19 where people are strongly advised not to gather together in groups, particularly not in indoor settings, that voting in-person is going to be problematic. For one thing, a lot of the people who are poll workers are older and in a high risk group.

So, we’ve seen this throughout the primaries that the jurisdictions have to shut down polling places because they don’t have enough staff. So, there’s been this real consolidation of polling places. It’s been harder for people to vote in-person. There are longer lines. Some jurisdictions have handled this better than others, but we have seen a lot of long lines, and a lot of complaints about people who felt that in-person voting wasn’t working very well or that they didn’t feel safe doing it.

So, if in-person, if you’re going to be shutting down polling places, and limiting the right to vote in-person, then the only other alternative is voting by mail. People have done studies of this. There have been extensive studies of the risk of fraud both in in-person voting and in vote by mail, and it just doesn’t pan out. People are trying to whip up some hysteria about this in order to make it harder for people to vote by mail and to discourage states from making it easier for people to vote by mail, particularly this year, but what we’re seeing is a great demand by voters who say, “We don’t want to go stand in line and vote in-person. We need to have this option.”

Many states have made it more available this year, really. Many local state and local officials are trying to rise to the challenge and trying to make this available to people, but if we want to have an election, which the statute say and the congress says-

Preet Bharara:              I want to have an election. Yes. I want one.

Ellen Weintraub:          “We’re going to have one this year,” right? People need to be able to vote, and there’s only two ways of doing it. So, to stir people up and suggest that there’s going to be fraud if more people vote by mail when no study has documented this, and people have looked into this. Even the people who are most adamant about the risk can only come up with a small number of cases over billions of votes taken over decades.

So, there really is no backup for this. It’s harmful to make people feel that the vote is not going to be fair, that they can’t trust it. There’s a real risk here that we’re destroying something that’s very precious. I’ve spoken to a lot of groups that come in from developing democracies, and they’re trying to learn how this whole democracy thing works.

One question that I get asked from time-to-time is, “Why do people trust the results? Why do people believe that when the results are announced that those are the accurate results?”

The first time somebody asked me that, I was really taken aback because it had never occurred to me that people wouldn’t trust the results. Once you undermine that basic faith that people have in their democratic institutions, that things are going to be done in a regular order and the votes will be counted properly, and they’ll be counted accurately, and people will have access to exercise their choices in a free and fair manner. When you undermine the trust in that system, it is very hard to build backup.

So, I really feel that this is a very front time for our democracy, and I feel an obligation to stand up for truth and facts, and to make sure that people understand what’s real and what’s not.

Preet Bharara:              On mail-in voting, what I really also don’t understand is it may be the case that some people politically for the president, for example, you want to make the case that mail-in voting is bad because you’re trying to explain something away or cost out in the minds of people who are on your side, but is there any evidence that the interest in mail-in voting is stronger on the democratic side or the republican side? It would seem to me that that would be a nonpartisan issue also, and that there’d be equal concern about the coronavirus in some cases, but also an interest in having the ease of voting from your home.

Ellen Weintraub:          Studies show that there is no advantage to one party or the other for mail-in votes that they fall in roughly equal proportions for democrats and for republicans that democrats and republicans are at least historically have been just as willing to use this and it’s particularly useful for older people and for people who live in more out of the way places.

These are places that are often republican strongholds. So, there is no reason to think that there’s going to be a partisan advantage one way or another. There may well be more people who are unable to vote, but that’s something that everyone ought to think is a good thing. That’s how we have a government that is empowered by the consent of the governed. That’s one of our basic principles that the government derives from its authority from the consent of the governed. If people can’t vote, then they cannot exercise that consent.

We live in a representative democracy. It is a stronger representative democracy. It is more representative when more people vote. So, there’s no reason for people to be afraid that this is going to have a partisan advantage. In fact, some republicans have come out and said, “Hey, this is good for our people. So, we should encourage this.” I don’t really care whether people are democrats or republicans. I just think that every eligible citizen should be able to vote in a way that’s accessible and safe.

Preet Bharara:              Here’s one consequence of massive mail-in voting that would take place in November, and you’ve written about this. We’re seeing this in primaries. We saw this in the New York primary, in which I voted a couple of weeks ago, that there will necessarily be a delay, and if it’s a closer election than not, then there will almost certainly be a delay before the winner can be announced.

We’re pretty used to knowing who the winner of the presidential election is on the night of. You wrote a piece in the New York Times a couple of months ago with our friend and former podcast guest, Kevin Kruse, the historian, that’s entitled, Take Some Deep Breaths and Prepare to Wait for Election Results. That’s all well and good. Are you worried? Maybe it’s the reason you wrote it. Are you worried that a delay in knowing whether Joe Biden has won or Donald Trump has won will cause further undermining in the faith of the election and conspiracy theories to thrive?

Ellen Weintraub:          That is definitely a concern. You’re right. That is one of the reasons that we wrote it. I don’t want people to feel that if they don’t know on election night it’s because there’s some nefarious activity going on. In fact, if they don’t know on election night, it’s because the election administrators are being very careful, and they are making sure to count every vote, and they want the vote to be accurate. That’s a good thing.

So, it will be frustrating. It will be stressful, but as the headline writer said, I didn’t write the headline, but we’re all going to have to be patient and take a deep breath, and try not to lose our minds if we have to wait a little bit to find out who won. It may affect the presidency. It may also affect various other races. There are often races that are too close to call and are not known immediately on election night. That’s not that unusual.

We are a little bit spoiled. We expect our newscasters to say, “Yeah. The polls have closed, and this is where the statement,” but-

Preet Bharara:              We’re very impatient. We want to know.

Ellen Weintraub:          Yes. That’s frustrating, but it’s better to get an accurate count a few days later than to not count every vote. I mean, that’s really what’s critical. We want to make sure that every vote counts.

Preet Bharara:              What’s the deadline under which we’re operating for some states to switch to more extensive mail-in voting? Are we about to have those deadlines expire and so this will become an academic conversation soon?

Ellen Weintraub:          Well, I mean, it’s not an academic conversation in that there are many, many states that really are trying to deal with this. There are not that many states that are fighting it. Most of the swing states for people who are interested in the horse race, most of the swing states have gone to anybody can vote by mail if they make that request, but it does require a preparation, and it requires resources.

The Brennan Center in New York has estimated that it could cost up to $4 billion for every state to get all of the equipment they would need and to get up to speed and get their training done, and do everything they would need to do in order to run a fully accessible vote by mail election. That’s a lot of money. Obviously, the states and localities are suffering in this economy like the businesses are and like individuals are.

So, where’s that money going to come from? Well, it could come from congress. Congress has appropriated $400 million, 400 million, want to be clear on the consonants there. It’s not nearly enough. It’s just not enough, and we should value our democracy enough to appropriate the funds to make sure that the states and localities have the resources to ensure that everybody can vote.

Preet Bharara:              Political ads, especially on social media, there’s a lot of debate about that, and a lot of anxiety about that. You’ve written about this also. You have said I believe that you don’t think that political ads on social media should be banned. You have made an interesting proposal and suggested that what these social media platforms might think of doing is to bar what is called microtargeting of small elements of the population. Explain what microtargeting is and why you think that is a good idea to stop.

Ellen Weintraub:          So, microtargeting is when you’re using your social media and they are just sucking all this data out of your day-to-day interactions online. These days, everybody is on their computer all the time, anyway, so there’s even more of that kind of data available. Every time you like something, every time you share something, the AI is just collecting all that information, and they use that to target ads to you.

Now, when they’re targeting ads for shoes, that’s one thing, but if they’re targeting ads for candidates, maybe that is something we ought to take a closer look at because some of those ads, they’re very narrowly targeted to address your own set of biases, but the people who are not going to be quite in sync with the ads, they’re not getting those ads. They’re not even seeing that.

So, there’s no counterspeech. That’s what our first amendment relies upon is that you don’t like what somebody is saying, fine. You get out there and make a better argument. That only works if you can see or hear the argument that is being made. These microtargeted ads are going specifically to people and they change up for every person basically based on their own sets of biases as derived from all of the information that the platforms get out of you when you’re not even thinking about it.

What I want to do is broaden the number of listeners, the number of readers for these ads, the number of observers. Let more people into the conversation. Some people, anytime you talk about anything that the platforms do, they jump immediately to saying, “Well, if the platforms impose any limits, whatsoever, it’s all censorship.”

Well, first of all, first amendment applies to government action. It doesn’t apply to private sector action, but second of all, I’m not trying to stop people from saying anything. What I think would be better is if more people could see the arguments that are being made, so that it would be easier for people to see when they thought arguments were misleading or using facts in an inappropriate, in a way that that was misleading or amount of disinformation, then they could respond to that in some intelligent fashion, and that we would have the kind of robust debate about ideas and politics and policies that the first amendment thrives on and celebrates rightfully so.

So, I think that the platforms would do us all a favor if they would share those ads more broadly and not have these kinds of very, very narrowly microtargeted ads that basically nobody other than you is seeing the exact same things.

Preet Bharara:              Any reaction to that proposal from the social media folks?

Ellen Weintraub:          Well, Twitter decided it was just not going to do political ads all together. They said, “This is just too front. We’re getting out of the game.”

Preet Bharara:              Too much of a headache. It’s just easier not to be in it.

Ellen Weintraub:          Yeah. They didn’t have a lot of political ads on their platform to begin with. So, maybe it wasn’t much of a sacrifice for them. Google has adopted something along the lines that I’m suggesting. They say they won’t take ads that are microtargeted or low the level of zip code, age, and gender. So, that sounds okay, except zip codes are about 8,000 people in a zip code. So, then once you start slicing that up by age and gender, you still could be looking at a pretty narrow slice of the population who’s looking at those ads.

I think the boundaries ought to be drawn a little broader than that. Facebook basically said, “No, no. We’re not going to do that at all. We like our microtargeting. That’s our business model, and we’re going to stick with it.”

Preet Bharara:              Can I ask a broad question, but it’s a basic question that has a lot of people scratching their heads and maybe it’s a too complicated question to answer briefly? Why is it in 2020, in state after state after state, you see images of American citizens waiting in long, long, long lines to exercise their right to vote? We saw that in Georgia. We saw it in Kentucky. We see it all over the place. Why is that? How is that tolerated, and how can it be fixed? You have one minute.

Ellen Weintraub:          Well, it shouldn’t be tolerated. It is intolerable. Nobody should have to wait more than half an hour to vote. Yet, we see this. We see this in election after election. This year is particularly bad because as I said, they don’t have any poll workers. So, I’ve seen some really lovely initiatives.

Preet Bharara:              Wait, but is some of it deliberate? Is it all just negligence and lack of resources or is some of it an attempt to suppress votes in certain places because that’s what people think?

Ellen Weintraub:          Well, again, I don’t want to try and get in to anybody’s heads, but I don’t think you have to worry about the intent as so much as the effect. The effect seems to be that people who live in urban areas and frequently in communities of color have longer lines. There’s been some studies of this that show that people in these communities wait on longer lines. That’s unacceptable. It’s just flat out unacceptable.

I think we need to get the resources together to address this. It’s going to be particularly difficult this year as I said because of the restriction in polling places due to the lack of poll workers. I am aware of at least one very positive initiative by law students to try and encourage other law students to volunteer to be poll workers. We could rely on people who have already demonstrated the desire to volunteer for public service through the AmeriCorps program.

This year, we brought home all of our Peace Corps volunteers. There were all of these wonderful public-spirited, young, healthy people who were willing to travel all around the world to go to live in some places in very simple environments and give up creature comforts in order to be of service, and maybe those people who have now been brought home would like to volunteer to be poll workers.

We could look to the national guard. There’s all sorts of populations that we could look to to encourage younger people, healthy people to volunteer to work in the polls. We are going to need to have poll workers. We also, by the way, on a slightly different topic, we’re going to need to have a functional postal service if we’re going to have all these people voting my mail. So, that’s another problem that’s looming out there that we better make sure that the postal service is funded.

Preet Bharara:              Let’s talk about an issue that’s been there for a while. We referred to it earlier. We talked about it on the show a number of times. The Supreme Court case of Citizens United from 2010. Just remind people what that case was about and the degree to which you believe it has affected money in American politics.

Ellen Weintraub:          Well, the impact has been huge, but it’s not so much in the details of the case as in the effects of it. So, Citizens United said that independent spending cannot be corrupting as a matter of law. There cannot be corruption in any form of independent spending. That’s why the coordination issue becomes so important because if it’s not really independent, if it’s coordinated, then you still got the same problem even under current Supreme Court doctrine.

Olson:                          This court needs no reminding that the government, when it is acting to prohibit, particularly when it’s acting to criminalize speech that is at the very core of the first amendment has a heavy burden to prove that there is a compelling governmental interest that justifies that prohibition, and that the regulation adopted, in this case a criminal statute, is the most narrowly tailored necessary to accomplish that compelling governmental interest.

Ellen Weintraub:          Mr. Olson, are you taking the position that there is no difference in the first amendment rights of an individual. A corporation, after all, is not endowed by its creator with inalienable rights.

Independent spending can’t be corrupting according to the Supreme Court, and corporations have the same right to speak that human beings do, which is interesting as a concept. Although, they trace it back to the people who are behind the corporations. They seem to be more concerned with dissenting views when it comes to labor unions than when it comes to corporations.

Preet Bharara:              So, if IBM decides it wants to spend a huge amount of money to elect Donald Trump or Joe Biden or anyone else, they can do that unfettered so long as it’s independent

Ellen Weintraub:          They can do that as long as they’re not coordinating with the candidates. The results of this has been. So, it is because independent spending cannot be corrupting that we, as a result of a circuit court opinion that was a follow on to the Citizens United that super PACs were created. They didn’t use to exist before 2010. Now, they’ve become big, big players, and they are often funded millionaire and billionaire donors who give lots and lots of money.

A lot of people were concerned at the beginning that this was going to empower all the big corporations to swamp the political field. That’s not actually what has happened as much. Corporations, particularly big, publicly held corporations, they’ve got a lot of stakeholders. They have shareholders. They have boards of directors. They have customers. They have employees. So, it’s hard for them to take over political positions because they’re going to make somebody mad in their group of stakeholders. Frequently, if they-

Preet Bharara:              You see that in advertising. They have to be careful about how they advertise as well because they upset certain stakeholders.

Ellen Weintraub:          Right. So, if they’re going to spend money in politics, they tend to do it by giving to the chamber of commerce or some other lobbying organization, trade association. What has happened is that it has the results of Citizens United has been the super empowerment of this class of mega donors, who spend millions and millions of dollars trying to influence who gets elected and then what gets enacted.

Because these super PACs can pop up in individual races, it’s exacerbated polarization in congress, I think, because everybody is afraid of the primary, particularly in gerrymandered districts or in states that are predominantly red or blue, everybody is afraid of getting primaried. They’re not so much afraid in the general election perhaps, but they are afraid of getting a primary challenge by somebody who gets funded by big, big money on the outside.

It makes everybody just hunker down into the most extreme positions because there isn’t a super PAC that’s set up there to fund people who are willing to compromise and see common ground. All of this big money is exacerbating the influence of the very wealthy, who are already pretty influential, as well as driving polarization in congress and making it harder for us to get things done in Washington at all.

So, I think the effects have been really negative. It’s a very unpopular opinion. It’s really out of sync with the way most people view money in politics. I mean, if you think about it, you can’t give $3,000 to a candidate because that’s considered to be inherently corrupting to go over the contribution limits, and that would be illegal. You can give $3 million to a super PAC that is doing nothing but trying to elect that same candidate.

The Supreme Court says, “Well, there’s absolutely no risk of corruption. Nobody could possibly be corrupted by that $3 million contribution to ease their election, as long as it doesn’t go directly to their campaign committee.”

I think that just defies common sense. People across the country get that. They get that whether they’re democrats or republicans or independents. There’s a really strong sentiment against this opinion. I think the Supreme Court is really just out of step with the way most people in this country think about corruption and think about the role of money in politics.

Preet Bharara:              Yeah. I think these are not quite parallel cases, but they’re public corruption cases. Sometimes the Supreme Court rules 9-0 like with the former government of Virginia. I don’t think they, I hate to use this word and I have great respect for the court, but they’re a little bit naïve on the issue of how politicians can act corruptly and how easily they can get corrupted, and how much influence they can have over the governments they lead and employees they lead by defining out of the statute certain kinds of official actions. So, it’s been a great frustration to prosecutors who are trying to clean up local government, and obviously a great frustration to people who are trying to clean up politics as well.

Is there anything short of a constitutional amendment that can be done by an agency or by congress to mitigate what you believe are the bad effects of that decision?

Ellen Weintraub:          Well, I think there are a number of things that could be done that are consistent with that opinion. It would take a constitutional amendment or a different court to really address some of the worst aspects of it. We could, consistent with Citizens United, we could improve disclosure. There’s been almost a billion dollars in dark money that has flooded our elections in the 10 years since Citizens United was issued by the court, and that doesn’t need to be.

As I mentioned earlier, it’s one of those issues that the commission tends to deadlock on, but we could adopt stronger rules. The FEC could adopt stronger rules. Congress could adopt stronger statutes that would improve disclosure, and make sure that at least people could follow the money in terms of who’s really behind these organizations. So, disclosure is completely consistent with Citizens United.

Also, this is a sleeper issue that doesn’t get a lot of attention. I worry a lot about the potential for coercion. When corporations are empowered to be explicitly active in politics, corporations don’t actually have their own mouths. They have to work through people. I worry about the potential for coercion of employees. We’ve seen some cases where, again, we deadlocked at the commission, but I think this is a serious issue that could be addressed completely consistently with the rationale of Citizens United coordination. We could do more to address coordination. Congress could do more to address coordination to really put some teeth in these rules.

We have a situation now where the candidate can go and do fundraising for the super PAC that is supposedly independent. They announce publicly what their favorite super PAC is, so their donors know where to go. They post video on their websites, so that the super PACs can take that video and run ads with really good high quality pictures of the candidates. I mean, it’s really gotten silly. It’s like these coordination rules are like Swiss cheese now.

They haven’t been strengthened since Citizens United. They weren’t designed for this world. They were not designed for a world in which super PACs exist. So, naturally, they’re not doing a very good job of upholding the principles of independents.

Another area that I think we really could do more is in the area of blocking foreign national spending in our elections. We know our intelligence community has warned us that there are numerous foreign governments that are trying to get into our heads, spread this information, trying to foment chaos in our society and in our elections, and I believe we could do more about that than we are currently doing. Again, it would be completely consistent with the rationale of Citizens United.

Preet Bharara:              Do you have a view on the electoral college? Have you had a chance to take a look at today’s Supreme Court decision? I should note that we’re recording on Monday, July 6th, and there was a 9-0 opinion authored by Justice Kagan about faithless electors.

Ellen Weintraub:          I have not had a chance to read that opinion yet. I’m aware of it, but I just-

Preet Bharara:              Can I tell you what I’m aware of, what I find interesting?

Ellen Weintraub:          Sure.

Preet Bharara:              Because it dropped shortly before we started recording, and from social media, which is not the best way to get a good handle on a Supreme Court decision, but Justice Kagan was trending in part because in that opinion, which I have not read in full, she makes references to both Hamilton and Veep, which are the most popular justice in America today.

Ellen Weintraub:          Well, I think references to popular culture are a good way for the Supreme Court to try and help people understand what they’re trying to say, and references to Hamilton are always in order.

Preet Bharara:              More people will read at least those few paragraphs of the Supreme Court than one would have otherwise because they want to see what the jokes were.

Ellen Weintraub:          Well, now, I’m really looking forward to it. I haven’t had a chance to read it yet myself, and I’m really looking forward to it.

Preet Bharara:              Do you have a view on electoral college overall? That’s heavy sigh that directly reflect that the commissioner’s sighed very heavily.

Ellen Weintraub:          Big sigh. I think it was designed in another world, in another era. This is outside of my jurisdiction. There’s nothing the FEC could do about this, but I do think that it is troubling to a lot of people when the popular vote and the electoral college vote diverge. This is, again, a topic that people from other countries have asked me about. They really cannot wrap their mind around the electoral college.

It’s interesting that even though US citizens have gone around the world and tried to help developing democracies set up rules, I don’t think we have advocated that any other country set up an electoral college system. It’s fairly unique to us, and I think that, again, because I worry about people’s faith in their democracy and faith in their government that it is just inevitable that people are going to feel that they are not being accurately represented when the popular vote and the electoral college vote diverge, and the loser of the popular vote ends up winning.

We don’t do that anywhere else. We don’t do that in state local elections. It’s hard to even imagine another contest where the rules would be set up in anything like that fashion.

Preet Bharara:              So, can I ask you about something I mentioned earlier in the interview, Don McGahn, about whom you wrote a very critical oped when he was about to ascend to the position of White House Counsel. Of course, being a White House Counsel to this president is a particularly, I think, difficult job to have for a lot of reasons. He became well-known unlike a lot of White House Counsels to a lot of people in the country because he figures prominently in the Mueller report. Do you have any reaction to his conduct as described in the Mueller report? Were you gratified in any way that this person who you had some critical to say about, at least according to the report in some instances resisted his boss’ efforts to get him to do something that he thought was inappropriate?

Ellen Weintraub:          Well, I never expected to see him in jail. I never expected that he would commit obstruction of justice and go to jail. I think he’s much smarter than that, but-

Preet Bharara:              He’s much smarter than that? Not much better than that? You said smarter than that.

Ellen Weintraub:          Well, I think it should be the floor and not the ceiling that we would expect the White House Counsel would not violate the law, would not commit obstruction of justice, would try and prevent, in fact, obstruction of justice.

Preet Bharara:              Some of us feel that way about the president himself. You don’t have to comment.

Ellen Weintraub:          Yeah. I don’t think I will, but McGahn was a disruptor at the FEC. He wanted to throw the table over and change all the rules and break all the norms. So, I wasn’t really surprised to see him form an alliance with a candidate who was known for being a disruptor as well. He may have found somebody who was an even more of a disruptive factor than he was, but like I said, I mean, I wasn’t surprised or gratified to see a White House Counsel not break the law. That really ought to be our baseline, not our aspiration.

Preet Bharara:              Commissioner Weintraub, thanks again for being on the show and for informing us and advising us on so many important issues, especially this year when we have an important election coming up.

Ellen Weintraub:          Everybody, stay safe and don’t forget to vote, but do it safely.

Preet Bharara:              My conversation with Ellen Weintraub continues for members of the CAFE Insider community. Insiders get bonus Stay Tuned content, the exclusive weekly podcast I co-host with Anne Milgram, now the United Security Podcast co-hosted by Lisa Monaco and Ken Wainstein, recordings of weekly notes by Elie Honig and me, and more. To get a free two-week trial, head to cafe.com/insider. That’s cafe.com/insider.

Hey, folks. I hope you all had a good fourth of July. I think it’s a special day. I’ve always celebrated it with my family, and I always intend to. As I tweeted on Independence Day, “I’m an immigrant who loves America, and it’s promised more than I can describe, and I join every patriot who wants to make our country more just and fair and equal, and its promise available to all. Happy fourth.”

So, it is true that July 4th is a day on which many Americans celebrate American freedom, but it’s also worth thinking about some other things as well. On the day the Declaration was signed, this aspiring nation did not live up to the ideals embodied in the document.

So, today, I want to end with some important words from the past from Frederick Douglass. After escaping slavery, abolitionist and writer Frederick Douglass gave a speech in Rochester, New York on July 5th in 1852. It’s entitled What to the Slave is the Fourth of July?

Douglass, as you may know, authored several notable works in biographies, was an avid debater, and was unintentionally nominated as the vice president to presidential nominee Victoria Woodhull of the Equal Rights Party in 1872, though, he declined the nomination. The two were outspoken suffrage activists.

Douglass taught himself how to read and write at a young age, and he famously said that, “Knowledge is the pathway from slavery to freedom.” This year on the fourth, five young descendants of Douglass recited his famous speech in a short film by NPR, which asks all Americans to consider the country’s long history of denying equal rights to Black people.

One day later, on July 5th, 168 years after Frederick Douglass delivered that speech, a statue of him in Rochester was vandalized and ripped from the base it stood on in Maple Wood Park. The park had once been a site along the underground railroad, where Douglass and Harriet Tubman had risked their lives to move in slaved people to freedom and safety. The statue was found destroyed in about 50-feet away. No arrests have yet been made.

In the year since Douglass first delivered his speech, the world has indeed changed dramatically. Yet, from Frederick Douglass to George Floyd, racism in this country is still a problem, and is still killing Black Americans.

So, I want to leave you with an excerpt from the speech What to the Slave is the Fourth of July, and I hope you’ll take a moment to reflect on those words.

“Fellow-citizens, pardon me. Allow me to ask, why am I called upon to speak here to-day? What have I or those I represent to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? And am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?

What, to the American slave, is your Fourth of July? I answer: a day that reveals to him, more than all other days of the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy—a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation of the Earth guilty of practices more shocking and bloody than are the people of these United States at this very hour.” Frederick Douglass, 1852.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Ellen Weintraub, Lisa Monaco, and Ken Wainstein.

If you like what we do, rate and review the show on Apple Podcast or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me, @PreetBharara, with the #AskPreet or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET or you can send an email to [email protected] Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai, and Geoff Isenman. Our music is by Andrew Dost.

I’m Preet Bharara. Stay tuned.

 

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Free and Fair Elections (with Ellen Weintraub)

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