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Guinta campaign finance case underscores election panel’s dysfunction

Representative Frank Guinta.Brendan Hoffman for The Boston Globe/file/2011

WASHINGTON — It took the Federal Election Commission more than four years to determine that Representative Frank Guinta of New Hampshire had violated campaign finance regulations by dipping into his parents’ savings to fund his 2010 campaign. Following that decision, released last month, fellow Republicans have called on Guinta to resign, criticizing him for lying and suggesting he is damaged goods.

But perhaps equally dented by the lengthy query is the FEC itself, which deliberated through three general election cycles — allowing Guinta to win his seat, lose it, and then win it again — before concluding that he should pay back the money plus a civil penalty.


“The public has a right to have this law enforced, and the FEC is not doing it,” said Lawrence M. Noble, who served as FEC general counsel for 13 years. “Taking five years on a case like this is unacceptable.”

The Guinta case provides a study in contemporary FEC dysfunction, say some experts, illuminating the political gridlock within the commission as well as the panel’s inability to press forward with vigor when a respondent fails to cooperate fully.

The FEC, which marks its 40th anniversary this year, was created after Watergate by Congress to provide a federal check on candidate fund-raising behavior. Its commissioners are appointed by the president and confirmed by the Senate. Gridlock there is so pronounced and institutional faith in the FEC so low that five of the six commissioners have served out their terms and are operating in a holdover status; the president hasn’t bothered with new appointments since 2013, and Congress has signaled its disinterest in refreshing leadership there.

In recent years, the FEC’s panel of three Democratic and three Republican commissioners has found itself hampered by the same partisan battles plaguing much of Washington, and beleaguered by its own bureaucracy. During a May meeting of the FEC, Commissioner Lee E. Goodman said plainly that he and his Republican colleagues had held matters they believed unfairly targeted GOP lawmakers, according to audio provided on the FEC website. He said he had tallied complaints to the agency and that they were heavily weighted against Republicans.


“I’m speechless,” responded Commissioner Ellen L. Weintraub, a Democrat who used her time during the meeting to propose a “neutral policy” requiring that most cases should be processed within a six-month window.

“It would never occur to me to go through our docket and do that kind of analysis,” she said of Goodman’s calculations. “I don’t think about our cases that way. We have no control over who files the complaints and who are our respondents.”

In Guinta’s situation, two complaints were filed within months of each other in late 2010. The FEC’s general counsel determined in May 2011 that there was sufficient cause to suggest Guinta did not have the $355,000 he had given his campaign committee, effectively launching an investigation.

“There is reason to believe that Guinta did not have enough personal funds to finance his loans and contributions to his campaign,” the general counsel’s office said in that report.

It then took almost three years, until February 2014, for the second general counsel report to summarize its findings: that while a candidate for federal office is permitted to make unlimited expenditures from personal funds, in Guinta’s case, he had tapped his parents’ kitty for the cash. He had not paid income taxes on dividends or interest earned from the relevant accounts, the general counsel concluded, and he lacked legal title to the funds held by his mother and father.


His mother, Virginia, “confirmed her understanding that the loans would be repaid,” the report also said.

The report hints, meanwhile, at some of the behind-the-scenes difficulty that contributed to the wait:

“During the course of our inquiry, we engaged in protracted negotiations with Respondents’ counsel to obtain the records and information” needed to assess Guinta’s assertion that he had some right to the funds in question. “Despite our best efforts, we were unable to obtain voluntarily more than a partial production of the records we sought.”

It took another 10 months — until December 2014 — for commissioners to vote in response to the general counsel report. A first vote was split three to three along party lines. The second tally, taken the same day, was unanimous.

But in both cases, the FEC redacted some of the notes attached to the votes, which might have provided explanation for the initial points of difference — say, a disagreement about how much a civil penalty might be or if the donors, in this case, Guinta’s parents, should also face a fine — among the commissioners.

Another five months passed until April 2015, when Guinta and his attorney agreed to the terms, including paying back the $355,000 and a $15,000 civil penalty.

Neither Guinta and his lawyer nor the FEC commissioners responded to requests for comment.


Lawrence H. Norton, who served as FEC general counsel from 2001 to 2007, said the staff and commission lack leverage when a respondent drags. Subpoena power can be granted, and the matter can be taken to court, but that, too, can take months to be resolved.

Still, Norton said, the length of this case seems outsized for the substance of the matter.

“I think that’s a long time to resolve any but the most complex matters or detailed investigations,” he said.

Norton said the FEC is sometimes reluctant to bring actions during an election campaign for violations about that campaign for the obvious reason that findings might sway the electorate. But three elections come and gone? That’s another story entirely.

“Their matters should be resolved as expeditiously as possible after that particular election,” he said. “This one obviously wasn’t.”

Sheila Krumholz, executive director of the Center for Responsive Politics, said in the Guinta case, the FEC’s failure to act earlier had “serious consequences” for voters. After all, Guinta has an honorific he never might have if voters knew during the 2010 contest that he had secured his campaign money improperly.

“They didn’t get the caliber of candidate that they deserve,” she said.

Though Republicans are distancing themselves from him, and the conservative New Hampshire Union Leader opined that, “Frank Guinta is a damned liar,” Guinta could nonetheless stand to benefit from the FEC’s slow processing of his case.


“When this much time passes between the alleged conduct and the settlement, I think the public loses interest and isn’t likely to view it as very serious or important,” Norton said. “Part of an effective justice system is timely justice. I think the system loses credibility.”

If, that is, Guinta doesn’t face additional congressional or law enforcement inquiries; Citizens for Responsibility and Ethics in Washington, a watchdog group, filed a complaint this week with the Office of Congressional Ethics, asking it to examine whether Guinta has violated House rules or federal law.

In the meantime, the case has renewed the debate about what, if anything, can be done to repair the FEC’s reputation and functionality. One suggestion is for retired judges to take on the commissioners’ jobs, though reconstituting the congressionally mandated FEC seems a long shot.

Norton says the commission is moving in the right direction in discussing firmer benchmarks for completing cases and moving through the docket, per Weintraub’s and others’ suggestions. Though, ultimately, it seems the commissioners — the current panel at least, if Goodman’s remarks are any indication — are unlikely to even agree on that.

“I’m all in favor of changing the structure of the commission,” said Noble, who is now senior counsel at the Campaign Legal Center. “I think it doesn’t work at all. But at the end of the day, it comes down to the quality of the commissioners and what they believe in.”