Freedom Vote Inc., a nonprofit organization funded by six-and-seven figure contributions from anonymous donors, spent the vast majority of its funds–more than $3.4 million–on federal campaign activity during two election cycles, effectively acting like a political committee while failing to register and disclose as one. Behind the scenes, one of the group’s contributors explicitly wrote that their $500,000 check was “an Anonymous donation for the reelection” of a sitting senator and its executive director even admitted during a deposition that its “primary activity in 2016” was seeking to impact a Senate race. 

Despite these findings, which the Federal Election Commission (FEC) made after it launched a rare dark money investigation, Freedom Vote was never required to register as a political committee or to disclose its funding sources as other political committees do. Instead, due to a dispute among commissioners over their ability to address activity that happened more than five years in the past, the FEC deadlocked on finding probable cause to believe that Freedom Vote violated the law.

For roughly 15 months between 2019 and 2020 the FEC did not have the minimum of four members necessary for the agency to carry out many of its key policymaking, regulatory and enforcement functions. This extended incapacity essentially paralyzed the FEC’s inquiry into Freedom Vote soon after it began, eventually leading to the expiration of the statute of limitations on most of the group’s electoral activity. Lacking a quorum, the FEC was unable to authorize new investigative actions or go to court to enforce its subpoenas, leaving the agency without recourse when Freedom Vote stonewalled and delayed. 

In 2025, the FEC was hobbled again by a lack of quorum for the third time in six years, which extended for more than 280 days before the White House announced two Republican nominees who, if confirmed, would restore the agency to the bare minimum required to function. Freedom Vote serves as a case study in how even enforcement actions that the FEC had already authorized were threatened when the agency lost much of its ability to act. According to its status of enforcement report for fiscal year 2025, the FEC had two active investigations and 46 matters on its enforcement docket labeled as “statute of limitations sensitive,” all of which may now be endangered by the agency’s months-long incapacity.

CREW has unique insight into how the delays in the FEC’s investigation frustrated the effort to bring transparency to Freedom Vote as well as the voluminous and convincing evidence its nonpartisan staff eventually collected to support their probable cause recommendation. Since 2016, CREW has sought to expose how the group acted like a political committee while seeking to benefit from the limited disclosure requirements of nonprofits, filing two IRS complaints and the complaint that prompted the FEC’s investigation. CREW later sued the FEC after it closed the file on the case, ultimately resulting in a federal judge ruling that the FEC’s dismissal was contrary to law. After the judge returned the case to them, the FEC again failed to take action.  

Through this litigation and a Freedom of Information Act request, CREW obtained the FEC’s records from its investigation of Freedom Vote, totaling more than 2,200 pages including detailed financial ledgers, bank statements, internal emails, invoices, communications with donors, a deposition of Freedom Vote’s executive director and more. The documents provide an extraordinary window into how a dark money group actually operated to influence elections while keeping its big dollar donors secret. 

Here’s what the documents reviewed by CREW indicate:

  • Freedom Vote’s electoral spending was supported by large, secret contributions from corporations.
    • Multiple communications and financial records include terminology suggesting a corporate source.
    • Apparent redaction mistakes reveal the names of three corporations that Freedom Vote appears to have at least solicited contributions from: Altria, Nationwide and Pfizer. 
  • Some of Freedom Vote’s electoral spending was requested, guided and funded by another dark money group.
    • Deposition testimony and emails reveal that Freedom Vote engaged in electoral spending in support of then-House Speaker John Boehner (R-OH) in 2014 at the behest of a nonprofit called the American Action Network.
  • Freedom Vote’s legalistic statements disclaiming political plans or activities are in tension with, and even contradicted by, its actual activities. 
    • Despite telling the FEC in 2014 that it “did not receive any contributions” meant to further its independent expenditures that needed to be disclosed, Freedom Vote’s internal communications show it specifically sought funds to cover its independent expenditures that year.
    • In 2016, after a donor said their $500,000 contribution was meant to support the reelection of then-Sen. Rob Portman (R-OH), Freedom Vote accepted the money but tried to nullify the implications of that expressed intent with a lawyer-written letter claiming that its policy was to “not accept contributions earmarked to support or oppose candidates for public office.”
  • Freedom Vote was audited by the IRS soon after CREW filed a complaint against the group, ultimately paying a penalty and shutting down.
    • Accounting invoices show that within three months of CREW’s complaint, Freedom Vote was responding to an IRS examination covering the exact period targeted in the complaint.
    • In a deposition, Freedom Vote’s former executive director pointed to the legal problems involved with the IRS’s scrutiny as the reason the organization shut down.

Dark money is an ongoing problem in America’s political system that poses a serious risk of corruption and undermines the public’s ability to know who is seeking to influence them and their elected officials. According to a recent analysis for the Brennan Center for Justice, entities that do not disclose their donors spent a record high of $1.9 billion in federal races during the 2024 election. Freedom Vote may no longer exist, but the details of how it operated and the challenges the FEC faced as it tried to ensure the secretive organization complied with the law offer lessons today that are directly relevant for reining in undisclosed political spending. 

Background

Freedom Vote sprang up in the wake of the Supreme Court’s January 2010 Citizens United decision that supersized the role of money in American elections by allowing corporations to spend unlimited amounts on independent expenditures aimed at influencing elections. Though the Citizens United majority claimed the new political spending would be accompanied by “effective disclosure” that would allow citizens to determine if politicians were “‘in the pocket’ of so-called moneyed interests,” political operatives quickly figured out that groups like Freedom Vote could be utilized to spend big while keeping the sources of the money secret, leading to billions in dark money political spending since 2010. 

Freedom Vote was incorporated in Ohio as a section 501(c)(4) social welfare organization in early July 2010, less than six months after the Citizens United ruling. 501(c)(4) organizations, which are exempt from taxation, do not have to disclose their contributors and are allowed to spend money influencing elections, though such spending cannot be their primary activity. For these reasons, 501(c)(4) organizations are a common vehicle for dark money political spending post-Citizens United.

In its articles of incorporation, Freedom Vote described its organizational purpose broadly as “to further the common good and general welfare of the people of Ohio.” But a story in Politico two months later indicated that the organization was formed for the more distinctly political purpose of running a turnout project in the 2010 midterm elections focused on Republican and conservative voters.

Politico reported that “a group of Republican activists” created Freedom Vote “with the express purpose of raising money to help pay for the type of turnout operations traditionally underwritten by the [Republican National Committee].” The story quoted a former executive director of the Ohio Republican Party named Tom Whatman, who was described as an “adviser” to Freedom Vote, saying that he “understood that the lack of resources from the RNC was going to have a severe impact on what the parties were going to be able to do.”

According to its tax returns covering the time period of the 2010 election, Freedom Vote raised and spent more than $3 million in its first 15 months of existence. During the same time period, Freedom Vote received more than $2 million from other nonprofits, including the Karl Rove-affiliated Crossroads GPS and the Koch network-tied Center to Protect Patient Rights.

For several years, Freedom Vote did not report to the IRS that it engaged in any direct or indirect political campaign activities supporting or opposing candidates for office, though it did acknowledge spending significant sums on “voter registration” and “GOTV” efforts. That changed, however, in 2014 when Freedom Vote supported Boehner as he faced primary challenges from two Tea Party-backed candidates. 

According to disclosure reports filed with the FEC, Freedom Vote spent $174,607 on independent expenditures supporting Boehner between the end of March and early May 2014, paying for canvassers, campaign literature and robocalls advocating for him. Freedom Vote acknowledged the spending as political activity on its tax return covering October 2013 through September 2014. During the same period, Freedom Vote spent a total of $284,754, meaning that the pro-Boehner political spending reported to the FEC accounted for 61% of its overall expenditures.

In June 2016, CREW filed a complaint with the IRS requesting that the tax agency investigate whether Freedom Vote’s 2014 electoral spending meant it operated primarily to influence political campaigns in violation of its tax-exempt status. At the same time that CREW was bringing Freedom Vote’s disproportionate political spending to the attention of the IRS, Freedom Vote was in the middle of an even more expensive effort to influence the outcome of the 2016 Senate race in Ohio. 

Between December 2015 and October 2016, Freedom Vote contributed $1.975 million to a super PAC called Fighting for Ohio Fund that supported Portman in his Senate reelection by paying for independent expenditures attacking his opponent, former Gov. Ted Strickland.  Freedom Vote also spent more than a million dollars in mid-2016 to pay for its own television ad attacking Strickland over his jobs record as governor that said he wanted to “bring his job-killing policies to Washington” while flashing an image of the U.S. Capitol building. 

In 2018, after Freedom Vote filed its tax return covering the bulk of its 2016 political spending, CREW filed both an IRS complaint and a FEC complaint against Freedom Vote, estimating that its super PAC contributions and anti-Strickland ad blitz accounted for more than 80% of its overall spending. In the FEC complaint, CREW alleged, among other things, that Freedom Vote had failed to register and report as a political committee despite dedicating the majority of its spending to federal electoral activity during most of its existence. 

Under federal law and Supreme Court precedent, an organization must register as a political committee with the FEC if in a calendar year it receives $1,000 or more in contributions or spends $1,000 or more on expenditures, as defined in the Federal Campaign Finance Act, and it has the “major purpose” of nominating or electing federal candidates. A significant factor the FEC considers when it assesses an organization’s “major purpose” is the percentage of its federal campaign spending relative to its other spending. Political committees are required to file periodic disclosure reports that include details about their contributions, expenditures and debts.

In May 2019, less than a year after CREW filed its FEC complaint, Freedom Vote filed paperwork in Ohio to dissolve its corporate status. Within a month, the organization also filed its final tax return, indicating that before it terminated its operations Freedom Vote paid $23,096 to the IRS for what it described as “tax, penalty, interest.” The move to shut itself down, which occurred well after Freedom Vote had been informed of CREW’s complaint and its legal obligation to preserve documents until the FEC closed out the matter, would prove significant in the case’s outcome.

A rare FEC investigation into a dark money group

On July 1, 2019, the FEC’s Office of General Counsel, after assessing the information in the complaint and Freedom Vote’s response, recommended that the commission find reason to believe–an FEC term of art that means there is sufficient evidence of a violation to warrant conducting an investigation–that Freedom Vote failed to register and report as a political committee and had failed to report its anti-Strickland ad as an independent expenditure. 

Less than a month later, on July 25, 2019, after deadlocking 2-2 on a broader set of alleged violations, the FEC voted 4-0 to find reason to believe that Freedom Vote failed to register and report as a political committee and failed to include the proper disclaimer on its anti-Strickland ad. The commissioners also authorized the use of compulsory process, meaning that the FEC’s staff would be able to use subpoenas and other orders for information in their investigation. 

The successful vote marked an extraordinary moment for the frequently dysfunctional commission. As the three commissioners who supported finding probable cause later noted, in cases involving unregistered “political committee” allegations the FEC had followed a “clear pattern” in recent years where it was “historically very unlikely” that recommendations by career staff that an investigation was warranted would gain the support of at least four commissioners, which is the minimum needed to take action. The pro-probable cause commissioners cited 11 cases dating as far back as the 2010 election that followed the pattern where proposed investigations were blocked.

Given this rare opportunity, the FEC’s investigators did not have much time to start gathering information before their efforts were essentially put on ice. On August 26, 2019, Republican FEC Commissioner Matthew Petersen, who had received an ill-fated judicial nomination from President Trump, announced his resignation, effective at the end of the month. Since the six member commission already had two long vacant positions, Petersen’s exit would drop the number of commissioners below the four required for a quorum. 

With the clock ticking down to a paralyzed commission, the four FEC commissioners unanimously approved a subpoena to Freedom Vote on August 30, 2019, though the commissioners did not authorize the Office of General Counsel’s request to also send a deposition subpoena to Freedom Vote’s longtime executive director, James Nathanson. Two days later the FEC officially lost its quorum. 

Despite their last minute subpoena authorization, FEC lawyers’ efforts to obtain information from Freedom Vote quickly ran into obstacles.

On September 10, 2019, according to records obtained by CREW, the lawyer who represented Freedom Vote when it filed its October 2018 response to CREW’s complaint, emailed a staff attorney about his receipt of the FEC’s notification that the commission had found reason to believe Freedom Vote violated the law. The lawyer, David Langdon, wrote that his firm no longer represented Freedom Vote “because it no longer exists,” but that he was requesting a 15 day extension on behalf of Freedom Vote for its former directors and officers to “decide whether to engage counsel to respond” to the FEC’s reason to believe finding.

The next day, then-FEC Commissioner Ellen Weintraub signed a subpoena ordering Freedom Vote to produce documents and answer questions. That same day, a FEC attorney named Justine di Giovanni replied to Langdon, agreeing to a 15 day extension and making clear that “[i]rrespective of Freedom Vote’s corporate status, the enforcement action against it is ongoing and a response is required.” 

Freedom Vote blew past the extension without filing a response. Over the next few months, the FEC’s di Giovanni fruitlessly attempted through multiple emails and phone calls to ascertain from Langdon whether he was representing Freedom Vote or if the organization had hired other lawyers. 

For instance, after the FEC sent the subpoena in mid-October to Freedom Vote’s former officers, Nathanson and Mitch Given, Langdon replied a month later to say he was in receipt of the subpoena, but the former Freedom Vote officers had yet to hire a lawyer to represent them, though they were “in discussions with an FEC practitioner in DC.” Stating they were hoping to finalize the agreement with counsel “next week,” Langdon requested an “extension of 30 days to respond to the subpoena.” 

By February 2020, the FEC still had not received a response to the subpoena and the FEC’s di Giovanni was still seeking clarity from Langdon about his role with Freedom Vote and whether it had “obtained FEC counsel with respect to this ongoing investigation.” The records obtained by CREW do not contain a response from Langdon to di Giovanni’s inquiry.

At the end of the month, di Giovanni sent letters directly to Freedom Vote’s former directors regarding their “non‐compliance with the subpoena” the FEC sent them in October 2019. Noting that more than 130 days had passed without a response, di Giovanni called their “failure to comply” with the subpoena “inconsistent” with Langdon’s representations about seeking counsel to aid in a response. In the letters, di Giovanni advised that a continued refusal to comply with the subpoena “may lead the Commission to draw adverse inferences in the next stage of the enforcement process.”

Nothing in the records obtained by CREW indicates that the FEC ever received a response to the letters about Freedom Vote’s failure to comply with the subpoena. Ultimately, the agency would only gain access to the information it sought after it fitfully regained its ability to act in 2020.  

On June 5, 2020, the FEC’s quorum was finally restored to the bare minimum of four when Republican James “Trey” Trainor was sworn in as a commissioner. In a statement soon after Trainor joined, Democratic Commissioner Weintraub emphasized that, during the nearly nine months without a quorum, the clock had been ticking on 71 cases where the Office of General Counsel had recommended moving forward and that the agency’s “ability to enforce the law” was now imperiled in 25 of those cases by the five-year statute of limitations.

The commission’s ability to act on those endangered enforcement cases, however, would be short-lived. In late June, Republican Caroline Hunter announced that she was resigning, leaving the FEC impotent again starting on July 3, 2020—less than a month after it had regained a quorum. 

Before Hunter officially vacated her seat, the Office of General Counsel sought to move the Freedom Vote investigation forward, requesting that the commissioners approve a deposition subpoena for Freedom Vote’s former executive director, Nathanson. Noting that “[t]o date”– 261 days after the subpoena was sent–“Freedom Vote has not responded to the Subpoena we served,” the lawyers wrote that they believed Nathanson would “likely comply with the subpoena directed to him individually.” 

But the FEC did not approve the Nathanson subpoena before it lost the ability to do so and the investigation essentially froze. It was only after a slate of three new commissioners–Democrat Shana Broussard and Republicans Sean Cooksey and Allen Dickerson–were finally sworn in nearly six months later on December 18, 2020 that the inquiry was able to move forward. 

A month later, the newly stocked commission voted 5-1 to approve the subpoena to Nathanson that the Office of General Counsel had sought nearly seven months earlier. Finally, on April 9, 2021, more than 500 days after the FEC first subpoenaed Freedom Vote, the organization’s new legal counsel delivered documents and provided answers that the FEC investigators sought at the outset of their investigation. Freedom Vote’s long-delayed compliance with the FEC’s subpoena was followed in mid-May by a deposition of its former executive director, Nathanson. 

In the deposition, FEC lawyers asked Nathanson why Freedom Vote didn’t respond to the initial subpoena or any of the subsequent notifications that were sent. Nathanson said they would have to ask Freedom Vote’s former legal counsel. “We provided counsel all Freedom Vote documents in order to comply to the subpoena,” Nathanson said. “The decision how to comply to the subpoena was not mine,” he said, adding, “It was Freedom Vote’s lawyer, David Langdon.”

Probable cause presented

On September 20, 2021, the FEC’s Office of General Counsel informed Freedom Vote that it was recommending to the commission that there is probable cause to believe the organization violated the law by failing to register and report as a political committee. In the accompanying brief, the FEC lawyers described how their investigation “confirmed that, by 2014, Freedom Vote’s major purpose had become the nomination or election of a federal candidate and further revealed that, from 2014 until its termination as an entity in 2019, over 71% of its expenditures aggregating over $3.4 million constituted federal campaign activity.” 

The record that the FEC was eventually able to assemble about Freedom Vote’s activities was voluminous. It included detailed ledgers of Freedom Vote’s receipts and expenses for each year between 2014 and 2019 as well as bank statements, vendor invoices, Nathanson’s lengthy testimony under oath and emails about both contributions and expenditures. 

In making the case that starting in 2014 Freedom Vote operated with the major purpose of nominating or electing federal candidates, the Office of General Counsel cited more than just the organization’s independent expenditures and super PAC contributions, which had previously been reported to the FEC. The investigation obtained internal records that indicated Freedom Vote spent even more on election-related expenses that went unreported in 2014, 2015 and 2016, including payments for opposition research, polling in congressional districts and the anti-Strickland ad. 

Despite efforts to frame Freedom Vote’s work as being focused on issues and policy, the group’s former executive director also repeatedly admitted in his deposition that elections were central to Freedom Vote’s spending. Most pointedly, Nathanson directly stated that the Ohio Senate race “was our primary activity in 2016” and that its million-dollar-plus anti-Strickland ad campaign sought to raise “questions about what he would be as a U.S. Senator.” 

The six commissioners split evenly when they took up the probable cause recommendation in November 2021, with three commissioners– Democrats Broussard and Weintraub along with Independent Steven Walther–supporting finding probable cause, and three commissioners–Republicans Cooksey, Dickerson, and Trainor–opposing. The same factions split on a vote to dismiss the allegations, which the Republicans supported and the Democrats and Walther opposed. 

In the commissioners’ dueling statements explaining their votes, the details and the sufficiency of the evidence amassed in the FEC’s investigation were not central to their division. The pro-probable cause trio observed that the investigation “obtained overwhelming evidence” that Freedom Vote qualified as a political committee while the three dissenting commissioners did not dispute the weight of the evidence assembled in the case beyond reciting the legal arguments Freedom Vote had offered. 

Instead, the divide among the commissioners involved legal questions about if and how the statute of limitations constrained the FEC’s ability to do anything about Freedom Vote as more than five years had passed since the group made federal political expenditures. The pro-probable cause commissioners argued that the five year window had not yet closed on a couple of disclosure reports Freedom Vote should have filed and that even if the expiration of the statute of limitations prevented the commission from seeking civil penalties from Freedom Vote, they could still pursue “equitable remedies” such as requiring the group to report its receipts and disbursements. The opposing commissioners rejected that equitable remedies were still viable while also arguing that pursuing the remaining reporting violations was not worth the effort in part because Freedom Vote was “defunct and bankrupt.” 

What CREW found in the records from the FEC’s investigation

In early January 2022, CREW sued the FEC over its dismissal of the Freedom Vote case, arguing that it was arbitrary, capricious, an abuse of discretion and contrary to law. Through both the litigation, in which CREW ultimately prevailed (see below), and a Freedom of Information Act request, CREW obtained the complete administrative record of the Freedom Vote case, which includes the evidence the FEC assembled and considered in the case.

The Office of General Counsel made extensive references to the evidence in its probable cause brief, but a broader review of the records that looks beyond the specific legal questions that the FEC’s lawyers were tasked with answering offers additional insights into how groups that seek to influence elections while allowing donors to remain secret actually operate. 

Here are key findings from CREW’s review of the records:

1. Documents indicate that Freedom Vote’s electoral spending was supported by large, secret contributions from corporations

When the Supreme Court handed down the Citizens United ruling that ushered in the new era of super PACs and dark money in American elections, critics like then-President Barack Obama warned that it could lead to elections being “bankrolled by America’s most powerful interests,” particularly corporations. But in its report on a decade under Citizens United, OpenSecrets suggested that the reality on the ground, at least in terms of corporate funds, did not turn out quite as bad as critics feared. 

“Major corporations didn’t take full advantage of their new political powers,” OpenSecrets wrote. “Corporations accounted for no more than one-tenth of independent groups’ fundraising in each election cycle since the ruling.” The report, however, included an important caveat to this finding, as it noted that “secretly funded nonprofits and trade associations that influence elections take money from major companies in amounts that are mostly unknown.” 

The Freedom Vote records obtained by CREW, which reflect the types of information that political committees are legally obligated to report to the FEC, shed light on this secret corporate funding. In particular, though Freedom Vote redacted identifying information for its donors before turning over its records to the FEC, multiple communications and financial records include terminology suggesting a corporate source.

For example, a check stub for a $100,000 contribution to Freedom Vote in July 2016 includes a designation on it for a “business unit” and refers to Freedom Vote as a “vendor.” Another check stub for a $10,000 contribution in October 2016 is annotated in handwriting with “corporate campaign.”

In December 2015, a redacted individual emailed Freedom Vote executive director Nathanson and consultant Whatman with an electronic funds transfer authorization form, writing, “please see attached form from our corporate finance team.” Less than a week later, Freedom Vote deposited $50,000. 

The largest contribution that Freedom Vote received between 2014 and its dissolution in 2019 was a $1 million check deposited in June 2016. A “letter of agreement” signed by Nathanson on behalf of Freedom Vote included language indicating the source of the $1 million was a company. 

One provision in the letter stated that the funding was not related to “any pre-existing or future business relationship” between Freedom Vote and the donor or “any business or other decision” that Freedom Vote may make related to the donor’s “products.” An exhibit to the letter also disclosed that the donor was subject to the Physicians Payments Sunshine Act, which requires medical product manufacturers to disclose payments to physicians and teaching hospitals.

The “letter of agreement” stated that the purpose of the million dollar contribution was to fund Freedom Vote’s “2016 Economic Policy Education & Advocacy Efforts” without defining what that meant and that Freedom Vote could only use the funds for that purpose. Although the “letter of agreement” made no mention of politics or elections, the documents obtained by CREW reveal that most, if not all, of the $1 million was quickly directed towards activities the FEC concluded were election-related.

The $1 million check was deposited on June 27, 2016 in a bank account with a balance of less than $50,000. Before it took in any additional funds, the same bank account was used by Freedom Vote to make a $500,000 contribution on July 5, 2016 to the super PAC Fighting for Ohio Fund. The contribution appears to have been solicited that same day in a letter from Freedom Vote advisor Whatman in his capacity as “manager” of “Fighting for Ohio,” in which he wrote that the requested $500,000 would support “direct advocacy efforts.” The next day, the super PAC paid $673,479 to air a TV ad opposing Strickland in the Ohio Senate race. 

The same bank account was also used nine days later–still before any additional money was deposited into it–to make a $497,668 payment to the media buyer who placed Freedom Vote’s anti-Strickland ad on TV in June and July 2016. In his deposition, Freedom Vote executive director Nathanson described the payment as being for ads Freedom Vote “ran in the 2016 cycle.” 

FEC lawyers also asked Nathanson about the $1 million contribution during his deposition and whether it came in response to a “general funding request” or if the solicitation was “project-specific.” Although he couldn’t recall specifics about the contribution, Nathanson said he assumed it was related to Freedom Vote’s efforts to influence the 2016 Ohio Senate election. “The main thing we did in 2016 was concerned about what was happening in the Senate race,” Nathanson said. “And that’s a million-dollar check, so I assume it was that.” 

One corporate donor to Freedom Vote was disclosed when internal records from FirstEnergy, the utility company at the heart of the Larry Householder bribery scandal, became public and revealed that the company gave Freedom Vote $100,000 in August 2016. Although Freedom Vote redacted identifying information about donors when it provided documents to the FEC, apparent mistakes in the organization’s redaction process reveal the name of at least three additional corporations that Freedom Vote appears to have at least solicited contributions from.

Most directly, an invoice dated April 2, 2014 on Freedom Vote letterhead for a “2014 contribution” of $100,000 failed to redact the name of Altria Client Services, an affiliate of the tobacco company that owns Philip Morris USA. 

Nothing else in the unredacted portions of the documents directly confirms whether Altria actually gave $100,000 in 2014, but Freedom Vote did deposit a $100,000 check a little more than two weeks later. That contribution arrived in the middle of Freedom Vote’s independent expenditure efforts to support Boehner’s reelection. 

The records also contain two copies of an email thread during the summer of 2016 in which Freedom Vote advisor Whatman shared polling data related to Ohio Senate candidate Strickland’s image that he said “shows what we’re doing is working” before saying he wanted to discuss with the recipient of the email “doubling down on our effort.” The FEC’s lawyers characterized this email exchange with “a donor” as Whatman making a “fundraising request on Freedom Vote’s behalf that was explicitly linked to Strickland’s performance.” 

In one version of the email thread, Whatman’s statement about “doubling down” contains a redaction where he names the person or organization he wants to discuss. In the other version, however, the name of the entity that he hopes will double down is visible: “I would like to catch up to discuss Nationwide doubling down on our effort (you knew this was coming!).”

In the thread, the individual who received Whatman’s email further confirmed that they represented a corporation, describing how “we continue to receive multiple requests for corporate contributions associated w/ local, state, and federal political initiatives.” The FEC’s lawyers described the thread as ending with “the donor asking for the address to which he could send his contribution and Nathanson providing Freedom Vote’s address.” Freedom Vote deposited $100,000 one day after the email thread ended.

Finally, a February 2017 invoice from Freedom Vote’s accountants included charges related to an “erroneous Form 1099”–a tax document–Freedom Vote received. In the section of the invoice itemizing specific work for which the accountants were billing Freedom Vote, a January 31, 2017 email regarding a “1099 issued to FV” is mentioned as is a February 1, 2017 email “re: Pfizer 1099.”

An email thread from around the same time appears to provide context for the erroneous 1099. In the thread, which began on February 3, 2017 and was eventually shared with Nathanson, a redacted individual asked for “guidance for the head of our DC office” who “funded a 501c4 organization last year and they have just received a 1099 form” that “is obviously an error.” The email thread closed out on February 8, 2017 after a redacted individual emailed Nathanson to say it was “confirmed Freedom Vote Inc 1099 Form was sent out in ERROR and the organization can ignore it.” 

The revelation of these company names in the Freedom Vote documents underscores how relying on publicly disclosed campaign finance reports does not provide a full picture of corporate money in politics as a search of FEC records shows Altria, Nationwide, and Pfizer were not active super PAC donors at the times their names appear in the Freedom Vote documents. Altria started contributing to super PACs in the 2016 election and Nationwide made super PAC contributions in 2017 and 2020. Pfizer does not appear to have ever contributed directly to a super PAC. 

2. Documents indicate that some of Freedom Vote’s electoral spending was requested, guided, and funded by another dark money group.

Under tax law, groups like Freedom Vote that are organized under section 501(c)(4) of the tax code are allowed to spend money influencing elections, but political work cannot be their primary activity. While the Internal Revenue Service has not formally defined the “primary activity” standard and is supposed to take all of the “facts and circumstances” into account when determining a group’s primary activity, it is generally understood that such organizations may not dedicate more than 50% of their expenditures to political activities. 

Similarly, the FEC uses a fact-intensive, case-by-case analysis to assess whether a potential political committee’s “major purpose” is the nomination or election of federal candidates. A significant factor the FEC considers is the proportion of an organization’s spending related to federal campaign activity. As with the IRS, the precise threshold has not been formally defined, but it is generally understood that dedicating 50% or more of expenditures to federal elections is indicative of a major purpose.

Effectively, this means that politically-active nonprofits can spend large sums of money influencing elections while keeping their donors secret as long as they can offset their political activity with other spending. One way that dark money groups have maximized the political impact of spending they don’t treat as political for tax or campaign finance reporting purposes is by making grants to other politically-active nonprofits.

The Freedom Vote records provide an illustrative example of this type of grantmaking in action. In particular, the records indicate that Freedom Vote engaged in its 2014 pro-Boehner electoral spending at the behest of a nonprofit called the American Action Network, which reported to the FEC that it spent close to $9 million on independent expenditures in 2014. 

During his deposition, Freedom Vote executive director Nathanson said that most of Freedom Vote’s fundraising was “project-specific” and that “most of the time” Freedom Vote was asked to take on projects by people outside of the organization. Asked for examples of externally-driven projects, Nathanson said “a man by the name of Brian Walsh,” who he said was “connected with the American Action Network,” asked Freedom Vote to do “one project.” At the time, Brian Walsh was the president of the American Action Network. 

Nathanson recalled that it “involved a race in the 8th Congressional District,” which was Boehner’s congressional district. He was unsure exactly “how much Freedom Vote was given to complete that project,” saying he believed it was “in the millions, but maybe it was only in the hundreds of thousands.” Nathanson also acknowledged that “sometimes” but “not always” outside organizations would ask Freedom Vote to do a project and then provide funds to complete the project. 

Nathanson’s description of the American Action Network’s role in Freedom Vote’s pro-Boehner spending is supported by other documents the nonprofit provided to the FEC. In particular, Walsh is included on emails discussing Boehner-focused campaign materials and some of the materials discussed in internal communications feature file names that associate them with the American Action Network.

On March 5, 2014, Nathanson emailed Walsh and two other people with the subject line “Door Hanger & Research,” writing, “Attached is the door hanger we are recommending we use with the first round of DTD work, along with what we have on the two main opponents.” Attached to the email were four documents, three of which contained the last names of Boehner’s primary opponents, J.D. Winteregg and Eric Gurr. The final attachment was a PDF with the file name “Rev.American Action Network OH08 Doorhanger.” 

Another American Action Network doorhanger document appeared two weeks later when someone who appears to have worked for the political advertising firm Majority Strategies emailed Nathanson, writing, “here’s the final version…new disclaimer WITH website. I will get these out the door ASAP.” Attached to the email was a PDF with the filename “American Action Network OH08 Doorhanger.” Three days later, Freedom Vote told the FEC it paid $3,050 to Majority Strategies for doorhangers supporting Boehner and opposing his primary opponents.

In early April 2014, before Freedom Vote paid Majority Strategies for another round of doorhangers in the Boehner race, Nathanson sought Walsh’s permission before printing the doorhangers. After sharing a PDF file of a Boehner doorhanger that he said had been approved by Freedom Vote’s lawyer, Nathanson asked, “Brian. Can I go to print?” Walsh replied affirmatively, giving his approval to the doorhangers. 

On its tax return covering July 2013 through June 2014, the American Action Network disclosed that it gave $150,000 to Freedom Vote. Though identifying information is redacted in the Freedom Vote documents, the $150,000 the American Action Network reported giving to Freedom Vote appears to match a $150,000 contribution Freedom Vote deposited on May 12, 2014.

Days earlier, on May 9, 2014, Nathanson, on Freedom Vote letterhead, requested from a redacted recipient “a grant in the amount of $150,000 to help further our educational projects and other outreach activities.” Nathanson’s letter said Freedom Vote’s objectives would be accomplished “through such activities as polling, voter registration drives, door-to-door canvassing, and GOTV activities.”

That same day, a letter to Nathanson from a redacted sender accompanied a $150,000 contribution. Though the name of the donor is redacted, the language in the letter suggests the donor was an organization rather than an individual, as it stated, “Enclosed please find a contribution in the amount of $150,000 to Freedom Vote from the REDACTED” (emphasis added). 

Though the American Action Network acknowledged to the IRS that it granted money to Freedom Vote, the tax-exempt organization did not report the grant as part of the $2.5 million it said it spent on political activity during the same time period. On the section of its tax return for disclosing political campaign activities, the American Action Network did not report giving any money to other organizations for “section 527 exempt function activities,” which is a legal term that covers political activity. The money it gave to Freedom Vote was reported on a separate section of the return for reporting grants to other organizations and was described as being for “general support.”

3. Documents indicate that Freedom Vote’s lawyerly statements disclaiming political plans or activities are in tension with, and even contradicted by, its actual activities.

In addition to imposing reporting requirements on political committees, the Federal Election Campaign Act also requires entities that are not political committees that spend more than a minimum amount to make independent expenditures to disclose those who donate to them in order to influence elections. The law also prohibits contributions in the name of another, meaning that contributions cannot be routed through intermediaries in order to avoid disclosure. These and other disclosure requirements, however, have regularly been sidestepped by dark money groups that rely on carefully written statements to claim that the law does not apply to their particular activities. 

The Freedom Vote documents contain multiple examples of how these types of lawyerly statements, which are difficult for observers or regulators to verify outside of investigations like the one the FEC conducted, can be smokescreens that dissipate when scrutinized.

For example, in 2014, when Freedom Vote was paying for independent expenditures supporting Boehner, the FEC sent it two letters pointing out that Freedom Vote had not reported any contributors despite the fact that “[e]ach contributor who made a donation in excess of $200 to further the independent expenditure(s) must be itemized.” Freedom Vote responded to each of the FEC’s letters with identical statements saying it “did not receive any contributions that were required to be itemized” under the FEC’s regulation and that the expenditures it had reported to the FEC “were made with general treasury funds.”

Internal communications obtained by the FEC, however, show that Freedom Vote specifically sought funds to cover its independent expenditures in the race. 

On April 16, 2014, Freedom Vote executive director Nathanson emailed consultant Whatman and a redacted individual, writing that as of that day Freedom Vote had “spent or obligated $138,800” and had “unpaid vendor debt,” but had “received no revenue for this project.” He further stated that, assuming “maximum effort through election day,” Freedom Vote would “spend another $90,000” and while it could “probably carry most of the current obligations,” getting money “to cover the future expenses would be very helpful.”

Whatman replied to Nathanson’s missive about the need for money “to cover the future expenses” by saying he had talked to a redacted person and that Freedom Vote “may have their check” by Friday morning, though he was checking to see if it was possible for the money to be wired before then.

The next day, Whatman said that the check would be “delivered overnight for tomorrow.” Freedom Vote’s records contain a check for $100,000 that was written that day and its internal ledger shows it deposited $100,000 on April 18, 2014. 

Three days later, the redacted individual replied to Nathanson’s email about the money Freedom Vote had already spent or obligated on the “project” and its need for money to cover future expenses, writing, “Just to triple check… with the REDACTED check in now, you should be good on the pre-May 6 expenses and then we just need to settle up the books post May 6. Correct?” Nathanson concurred. 

May 6 was the date of the Ohio primary Boehner was competing in with Freedom Vote’s support.

Two days later, after Nathanson acknowledged internally that a $100,000 contribution Freedom Vote recently received would cover its “pre-May 6 expenses,” the FEC sent a letter to Freedom Vote inquiring about how it had not disclosed any contributors when it filed its report detailing the $95,559.50 it spent on independent expenditures in the first quarter of 2014. A month later, on May 28, 2014, Nathanson responded to FEC’s letter, saying that Freedom Vote “did not receive any contributions that were required to be itemized.” 

Nathanson’s response to the FEC was sent two weeks after Freedom Vote received the $150,000 contribution described in the section above, which the organization’s financial ledger indicates occurred on the same day that Freedom Vote paid more than $85,000 to various vendors. The timing suggests that the $150,000 contribution was likely used “to settle up the books post May 6.” 

The FEC regulation covering reporting requirements for non-political committees that make independent expenditures that was referenced in both the FEC and Freedom Vote’s letters used language at the time that was narrower than what appears in the law. Under the statute, the disclosure provision applied to anyone who gave more than $200 “for the purpose of furthering an independent expenditure,” but the regulation said it applied to those who give “for the purpose of furthering the reported independent expenditure” (emphasis added). The narrowed regulation was struck down as inconsistent with the law in 2018 following litigation brought by CREW.

Freedom Vote’s emails indicating that both the $100,000 and the $150,000 contributions it received in 2014 were directly tied to paying for the expenses related to its pro-Boehner independent expenditures raise significant questions about whether the contributors who made them should have been disclosed, even under the narrower language of the regulation in effect at the time. Though the communications do not provide clear insight into what understanding the donors themselves had about how their funds would be used, the money was clearly sought to further some, if not all, of the reported independent expenditures. 

The records from Freedom Vote’s activities during the 2016 election, however, offer an example where a donor’s intentions were clear but Freedom Vote tried to nullify the implications of that expressed intent through lawyerly assertions. 

On August 31, 2016, a donor sent a $500,000 contribution check to Freedom Vote. The check was accompanied by a letter that explicitly stated, “this is an Anonymous donation for the reelection of Rob Portman,” the then-incumbent senator from Ohio who was being challenged by former Gov. Strickland. 

On September 2, 2016, Freedom Vote deposited $500,000, according to its financial ledgers. Two weeks later, Nathanson emailed the donor to share a letter regarding their “much appreciated recent contribution to Freedom Vote.” The letter, which Nathanson said was drafted by Freedom Vote’s lawyer, sought to disclaim the electoral intention expressed by the donor. 

Noting that the donor’s letter “mentioned a candidate’s campaign,” Nathanson’s lawyered response letter stated that “[a]s a matter of policy,” Freedom Vote “does not accept contributions earmarked to support or oppose candidates for public office.” It further claimed this policy was stated in Freedom Vote’s Disclosure Statement, a copy of which was provided with the letter and does not appear to actually state the policy claimed in the letter. 

Nathanson’s letter continued, “We understand that you did not intend to attribute your contribution to a candidate and this letter is written confirmation of that fact. Please let me know if this understanding is inaccurate.” It then closed by again thanking the donor for their “generous contribution.” 

The donor’s only response to Nathanson’s email and letter was to say, “Thanks.” As the FEC’s Office of General Counsel noted in its probable cause brief, despite its claim not to accept contributions earmarked to support specific candidates, Freedom Vote did not refund the contribution that was accompanied by the letter saying it was made to support Portman’s reelection.

Within weeks of receiving the $500,000 “anonymous donation” tagged as being for the support of Portman’s reelection, Freedom Vote made three more contributions, totaling $725,000, to Fighting for Ohio Fund, the super PAC dedicated to supporting Portman’s reelection.  

4. Documents indicate that Freedom Vote was audited by the IRS soon after CREW filed a complaint against the group, ultimately paying a penalty and shutting down.

As CREW has previously noted, the IRS’s track record in conducting oversight of tax-exempt organizations that engage in political activity does not inspire confidence. Between 2010 and 2017, the tax agency only conducted and closed 14 examinations related to failures by section 501(c)(4) organizations to comply with the rules on political campaign activity, according to a 2020 Government Accountability Office report. Though organizations like CREW have regularly brought apparent violations of tax rules by politically-active nonprofits to the IRS’s attention, there is little public evidence that the agency has taken significant steps to act on them.

The Freedom Vote case appears to be an exception to this disappointing record. 

CREW filed its first IRS complaint against Freedom Vote on June 15, 2016, requesting an investigation into whether the group’s pro-Boehner spending during the 2014 election meant it operated primarily to influence political campaigns. Within three months, Freedom Vote was responding to an IRS examination covering the exact period targeted in CREW’s complaint.

An October 2016 invoice from Freedom Vote’s accountants covers charges related to an “IRS exam” of the organization’s 2014 tax year. According to the invoice’s breakdown of work performed, Freedom Vote’s accountant discussed an audit with the organization’s lawyer on September 13, 2016 and a meeting with an IRS agent occurred a week later. 

Before the end of the year, Freedom Vote’s accountants billed it for “[p]rofessional services” related to “9-30-14 IRS exam,” as they did again in both February and March of 2017. The March invoice indicates that Freedom Vote’s political activity was a factor in the audit as it included expenses related to checking “rules on 527,” which is the section of the tax code related to political organizations. It also suggests the stakes were high for the audit with a review of “IRS revocation info.” 

Freedom Vote’s entanglement with the IRS ended more than a year later when the organization paid $23,095.61 to the IRS for a “settlement” on December 11, 2018, according to its ledgers. As CREW pointed out years later, when Freedom Vote filed its final tax return with the IRS, it disclosed a payment in that amount that it described as “tax, penalty, interest.”

In his deposition, Nathanson pointed to the “legal issues” involved with the IRS’s scrutiny as the reason the organization ceased “programmatic activity” post-2016. Nathanson said Freedom Vote “ended up settling, so it was very major,” and the audit “pretty well drained us” and the settlement payment “just about wiped us out.”

Asked if Freedom Vote’s choosing to shut down in 2019 had “anything to do with the fact that the complaint in this matter with the FEC was brought to your attention in August of 2018,” Nathanson pointed instead to the fallout from the IRS inquiry. “Our decision to dissolve was a function of having no money or having so little money that there was nothing that we could do with it, legally or otherwise,” he said. “Dissolving Freedom Vote, to the best of my recollection, was exclusively a function of out of money and an inability to raise money because of the legal problem.” 

Nathanson suggested that “the publicity surrounding the case” would have made it so it was “very unlikely” that any donor or other organization would want to put money into Freedom Vote. “So it was just better to let Freedom Vote die a gentle death,” he said.

“An untimely explanation is no explanation at all”

The documents described above were only revealed because CREW sued the FEC after its Freedom Vote complaint was dismissed and CREW obtained the administrative record of the agency’s investigation of Freedom Vote. Under the Federal Election Campaign Act, the filer of a complaint that is displeased by its dismissal by the FEC can seek judicial review of the FEC’s actions. CREW sued the FEC on January 6, 2022, less than two months after the FEC deadlocked on probable cause and closed the file on the Freedom Vote case.

CREW argued that the dismissal was arbitrary, capricious, an abuse of discretion and contrary to law because the three controlling commissioners who opposed finding probable cause had not offered a contemporaneous explanation of their vote. To ensure the agency does not act arbitrarily and to facilitate judicial review, when an FEC enforcement matter is dismissed due to a deadlocked commission, the “controlling commissioners” who voted against proceeding must issue a statement explaining the disagreement that led to the dismissal.

When they dismissed CREW’s complaint against Freedom Vote, the controlling commissioners had not recorded the basis of their disagreement with their colleagues. Indeed, the controlling commissioners had still not issued an explanation by the time CREW sued. The three Republican commissioners who opposed pursuing Freedom Vote further finally issued their explanatory statement in March 2022, four months after the FEC voted to dismiss the complaint and two months after CREW sued. 

As recounted in a March 2025 opinion by DC federal district Judge Christopher Cooper, who found that the FEC’s dismissal was contrary to law because the controlling commissioners failed to explain their votes at the time of the dismissal, the litigation wound through a “procedural thicket.” 

The FEC initially did not respond to CREW’s lawsuit since the commissioners failed to authorize the Office of General Counsel to defend the case, leading to a declaration that the agency was in default. CREW then sought to compel the FEC to provide it with the administrative record of its actions in the Freedom Vote case, but Judge Cooper denied CREW’s motion to compel, concluding that he likely did not have jurisdiction to review the FEC’s dismissal due to precedents from a series of cases that held FEC dismissals as unreviewable if prosecutorial discretion was invoked as their basis. The precedents are being reconsidered by the full DC Court of Appeals, but were–and currently still are–controlling for DC district judges like Judge Cooper. 

In late October 2023, however, Judge Cooper reversed his denial in light of an intervening appellate ruling that found a statement of reasons by controlling commissioners that is issued too late is a “post hoc rationalization[]” that is not “properly before the court as an explanation of the controlling Commissioners’ votes.” In his order, Judge Cooper said that because the three Republican commissioners who opposed further action in the Freedom Vote case released their statement of reasons so late–not only well after the vote to dismiss that they sought to explain but also more than two months after CREW sued–“the Court may not rely on the statement’s invocation of prosecutorial discretion as a basis for declining jurisdiction.”

It was only after Judge Cooper’s reconsideration that the FEC gave its lawyers permission to respond to CREW’s motion to compel. The FEC subsequently provided CREW with the administrative record from the Freedom Vote case, but opposed CREW’s effort to supplement the record with additional documents related to the FEC commissioners’ deliberations in the case. 

After Judge Cooper ruled against CREW’s “dogged” efforts to obtain the additional documents, the FEC sought to resolve the lawsuit with a “voluntary remand,” which would not require the agency to admit it acted in error and would not clearly establish a time frame for them to address the case again. CREW opposed the motion in favor of seeking summary judgment, arguing that under the Federal Election Campaign Act the proper course of action was for the court to declare the FEC’s unexplained dismissal contrary to law and to remand the matter to the Commission in order for it to conform within thirty days. 

On March 17, 2025, Judge Cooper ruled in CREW’s favor, finding that it was “clearly unlawful” when the controlling commissioners failed to “explain their reasoning at the time of the dismissal” of the Freedom Vote case. “As far as administrative law is concerned, an

untimely explanation is no explanation at all,” Judge Cooper wrote. After rejecting the FEC’s request for a voluntary remand, Judge Cooper vacated the dismissal of the Freedom Vote complaint and gave the FEC thirty days to take further action, emphasizing that should it decide not to pursue the matter again the commissioners needed to provide “an adequate, contemporaneous explanation for the dismissal.” 

Following the remand, the FEC’s Office of General Counsel recommended finding probable cause that Freedom Vote failed to register and report as a political committee, reiterating its stance that “equitable remedies remain available and are grounded in Commission precedent.” Requiring Freedom Vote to report its contributions and expenditures, the FEC’s staff lawyers argued, would vindicate “the Commission’s interest in disclosure,” even “years after the activity at issue occurred.”

But on March 27, 2025, the FEC again failed to find probable cause with only Democratic Commissioner Broussard supporting it. After another motion failed to gain four votes, the Commission, which required unanimity to act because it was down to just four members at that point, then voted to close the file on the case “effective April 15, 2025.” 

The commissioners appear to have treated the April 15 effective date as the deadline for them to explain their reasoning, with Broussard producing a statement on April 9, Democratic Commissioner Dara Lindenbaum producing one on April 10 and Republican Commissioners Dickerson and Trainor jointly producing one on April 15. 

Broussard simply stated that she “voted consistently with my original votes” in the case while Lindenbaum, who was not a member of the commission when the Freedom Vote case was first dismissed and abstained from the 2025 vote on probable cause, said she believed the FEC’s “scarce resources are better devoted to more current matters” considering the time that had lapsed. Dickerson and Trainor, who opposed finding probable cause in both 2021 and 2025, said that the “subsequent passage of three years” since they first blocked further action against Freedom Vote had “only compounded” the reasons for their opposition, which they reiterated at length. 

On April 15, Dickerson, Lindenbaum, and Trainor also issued a policy statement about the FEC’s enforcement procedures that addressed Judge Cooper’s ruling in CREW’s Freedom Vote case, expressing that they did not interpret Judge Cooper’s holding that “[a]gencies must explain their actions at the same time that they take them” to mean that “explanatory Statements of Reasons must be pre-written and issued at the moment the Commission votes to dismiss a complaint.” Requiring such contemporaneity “would pose intractable practical difficulties and hamper the Commission’s ability to function as a bipartisan deliberative body,” they argued. 

A month later, CREW filed a motion with Judge Cooper seeking a declaration that the FEC, in its handling of the Freedom Vote case on remand, had failed to conform with his ruling requiring a “contemporaneous, adequate explanation” in the event of a dismissal. By declaring that the dismissal would only become “effective” more than two weeks after the vote took place, CREW argued, the FEC appeared to be trying to “game” the court’s order and the controlling commissioners failed to “explain their reasoning at the time of the dismissal.” 

On November 10, 2025, Judge Cooper denied CREW’s motion for an order declaring that the FEC had failed to conform to his earlier order, ruling that the FEC’s delayed explanation nevertheless conformed with his prior order to issue a more timely statement.

The case comes to a close

With that ruling, the long saga of CREW’s FEC complaint against Freedom Vote, a nonprofit organization that influenced elections in the manner of a political committee while avoiding the disclosure required of political committees, came to an end. Although the more than seven years of effort did not result in the registration of Freedom Vote as a political committee, the fact that FEC actually investigated a dark money group is still extraordinary and the case’s legacy will continue to resonate even as memory of Freedom Vote itself fades further into history.

The information the agency obtained, as described above, illuminates ways in which undisclosed political spending practically operates in elections post-Citizens United, which can inform both legal and policy initiatives aimed at addressing efforts to circumvent disclosure in elections. The decisions in the case, both within the FEC and in court, also laid down important markers that may expand the possibility of campaign finance law actually being enforced in ways that Freedom Vote ultimately eluded. 

At the FEC, the commission’s unanimous decision to investigate Freedom Vote is now an internal precedent for finding reason to believe and its Factual & Legal Analysis has since been cited in numerous closed enforcement cases by both the Office of General Counsel and commissioners themselves. For example, in a case involving allegations that a nonprofit that spent more than $21 million on independent expenditures in the 2016 election failed to register as a political committee, the Office of General Counsel cited the Freedom Vote case in support of its conclusion that the group’s post-election drop in activity did “not undermine” the “reasonable inference” that “it had already become a political committee.” 

Multiple commissioners acknowledged that Judge Cooper’s ruling on CREW’s lawsuit broke new ground as it broadened the circumstances where commissioners who oppose a recommendation by the Office of General Counsel must issue an explanation of their decision in order to facilitate judicial review. While it was well-established that statements of reasons were required by the controlling commissioners who rejected a recommendation at the reason-to-believe stage, the results of CREW’s lawsuit made clear the requirement extended to circumstances where the commission failed to gain the four votes necessary to embrace a recommendation that there is probable cause to believe a violation occurred. 

As CREW stated after Judge Cooper issued his opinion in the case, the decision will also “make it easier for CREW and others to seek accountability in court for violations of campaign finance law if the FEC fails to enforce the law.” By requiring FEC commissioners to “explain their reasoning at the time” they dismiss a case, the Freedom Vote decision means the commissioners won’t be able to hide behind post-hoc rationalizations to protect their actions from judicial review.

How can future enforcement actions avoid the fate of the Freedom Vote case?

With the FEC currently experiencing its fourth loss of quorum in its history–three of those occurring in just the last six years–it appears that extended periods of an inability to enforce the law (as opposed to a gridlocked failure to do so) may be the new norm for the campaign finance regulator. But there are steps that policymakers, particularly Congress, could take to mitigate the potential for future losses of the FEC’s quorum to cripple enforcement cases and allow campaign violations to go unaddressed. 

Congress could revisit the Freedom to Vote Act, or its predecessor, the For The People Act, which passed the House in 2021 but was blocked in the Senate by a filibuster. In addition to broader provisions aimed at bringing transparency to dark money and limiting the corrupting influence of money in politics, several of the reforms proposed in both bills could have alleviated some of the factors that undercut the FEC’s Freedom Vote investigation and ultimately its ability to hold the nonprofit accountable.

Currently, in order for the FEC’s Office of General Counsel to initiate investigations or issue subpoenas, it must first gain the approval of four or more commissioners, which is impossible when the agency does not have a quorum and frequently serves as a chokepoint when it does. In the Freedom Vote case, even though the FEC found reason to believe and authorized a subpoena before losing its quorum, the need for four proactive votes while there were less than four members of the commission prevented the Office of General Counsel from taking additional steps in the face of Freedom Vote’s stonewalling such as sending a subpoena to Freedom Vote’s executive director individually. 

Both the Freedom to Vote Act and the For The People Act would authorize the general counsel to determine in enforcement matters whether an investigation is warranted, a decision that would take effect unless overruled by a vote of “a majority of the members of the Commission who are serving at the time.” Similarly, once an investigation has begun, the general counsel is authorized to issue subpoenas or conduct discovery subject to the disapproval of a vote of “a majority of the members of the Commission who are serving at the time.”

Currently, the Federal Election Campaign Act does not contain its own internal statute of limitations for civil liability, which means the general five year statute of limitations in U.S. law for enforcement of civil penalties applies. In the Freedom Vote case, in part due to the agency’s extended lack of quorum, almost all of the conduct at question in the case was more than five years old when the commissioners finally voted on the probable cause recommendation.

Both the Freedom to Vote Act and the For The People Act create statute of limitations specific to the Federal Election Campaign Act, with the Freedom to Vote Act extending them to 10 years and the For the People Act extending them to 15 years.

Finally, with the expiration of the statute of limitations looming over their decision making in the Freedom Vote case, the commissioners divided over what power, if any, they had to take some action to seek redress for Freedom Vote’s failure to register and report as a political committee. Congress could step in to clarify the specific legal issues that split the commissioners and make clear what options the FEC has available in future enforcement cases facing similar challenges.

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