James E. “Trey” Trainor III, the conservative Texas lawyer nominated by President Trump this week to serve on the Federal Election Commission, has challenged the principle that the public benefits from the disclosure of political donors, arguing that voters could be distracted from the content of political messages if they focus on who is financing ads.
Trainor's stance on disclosure is counter to the position that Trump himself took during the 2016 presidential campaign, when he called for more transparency of donors behind big-money groups. “I don’t mind the money coming in,” the then-candidate told Time magazine in August 2015. “Let it be transparent. Let them talk, but let there be total transparency.”
In media appearances and public forums, Trainor has made the case that the Federalist Papers succeeded in promoting the ratification of the Constitution because Founding Fathers Alexander Hamilton, James Madison and John Jay wrote them under the pseudonym Publius. And he appeared to erroneously suggest that the Supreme Court's 2010 Citizens United decision endorsed anonymous political contributions.
“The reason [the Federalist Papers] were published anonymously is because they wanted the effectiveness of their ideas to win, not who was saying it to win the arguments,” Trainor said during a March appearance on a conservative webcast. “And ultimately that’s what Citizens United has decided, and why it’s just such a terrible idea to have that rolled back.”
In fact, the Supreme Court upheld the concept of donor disclosure in Citizens United v. FEC, which allowed corporations to spend unlimited sums on independent political activity. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages,” the majority wrote.
James A. Gardner, a professor at the University at Buffalo School of Law who specializes in election law, said that “the court has said repeatedly that disclosure of the identity of donors improves the quality of electoral decision-making by informing voters who supports candidates, and thus to whom they may be beholden.”
Nathaniel Persily, a constitutional law professor at Stanford Law School, noted that even the late Supreme Court justice Antonin Scalia supported disclosure requirements. He said the court has recognized an exception for groups that might fear retaliation, such as the NAACP in the 1950s. “But requiring some disclosure is seen as the minimum necessary to prevent outright bribery,” Persily added.
Brendan M. Fischer, who directs the federal regulatory work of the advocacy group Campaign Legal Center, said the U.S. Senate should press Trainor on his interpretation of Citizens United when considering his nomination.
“It is incredibly concerning that an individual nominated to the Federal Election Commission either doesn't understand or is willfully ignoring the fact that the Supreme Court has repeatedly upheld and endorsed campaign finance disclosure,” said Fischer, whose group flagged Trainor's past statements for The Washington Post.
White House spokeswoman Natalie Strom said in a statement that Trainor "is an expert in campaign finance law -- particularly in the field of state election law -- who comes from outside of the Washington swamp."
"The president looks forward to having him join the FEC in this key role," she added.
Trainor, who was nominated to replace GOP Commissioner Matthew Petersen, declined to comment. But David Warrington, a friend and longtime legal colleague, said he is confident that Trainor will be committed to enforcing the law, including current disclosure rules.
“He is a law-and-order kind of guy,” said Warrington, who heads LeClairRyan's political law group. “Certainly, donor disclosure is appropriate in certain circumstances, and those circumstances have been defined by courts, including the Supreme Court of the United States. His personal views of whether the courts have gone too far or not far enough are really immaterial to the position of a FEC commissioner.”
During a January policy forum hosted by the Texas Public Policy Foundation, Trainor elaborated on his views, saying regulation should focus on lobbying activities, not political spending.
“I mean, we cannot imagine what would have happened had Alexander Hamilton and John Jay … had to put on every issue of the Federalist that it was paid for by them,” he said. “The reason that they used the Publius name was because they were concerned that their influence in the process would become an issue. They wanted the weight of their argument to be what won, and they looked at it from that perspective: 'If we do it anonymously, the people will read this and they will understand.' And so I can't imagine a world where they would have had to disclose with the state of New York that they had spent all of the money they’d spent.”
Trainor noted that the retailer L.L. Bean was in the midst of a consumer backlash because Linda Bean, a granddaughter of the company's founder, gave money to support Trump.
“Did Donald Trump need her $1,000? Probably not,” he said. “She didn’t even give the maximum amount that she’s allowed to give to a federal candidate.” (In fact, Bean contributed $25,000 to a pro-Trump PAC, FEC filings show.)
“But what we have seen is a concerted, focused effort to make it about personalities in politics and to focus on retribution towards her company because she made a $1,000 contribution to somebody that she believed in and thought was an appropriate message for the country,” Trainor added.
This post has been updated.