How Congress Can Help Fix the Federal Election Commission
The notoriously dysfunctional FEC is failing to enforce campaign finance law and update election rules for the modern age.
Update August 27, 2019: Federal Election Commission (FEC) Vice Chairman Matthew Petersen has announced his resignation from the agency, which is traditionally composed of six commissioners. But due to existing vacancies, Petersen’s departure will bring down the number of FEC commissioners to three, short of the four commissioners needed for quorum to vote on proposed actions. This will prevent the FEC from issuing formal guidance to campaigns and enforcing campaign finance laws right as momentum for the 2020 election starts to pick up. Even more troubling, it is likely to further stall progress on critical proposed rules to address foreign efforts to influence the U.S. electorate.
The Federal Election Commission (FEC) was established to safeguard the integrity of U.S. federal elections. But thanks to perpetual partisan gridlock, the agency has been failing do its job to enforce campaign finance law and to address the rapidly evolving legal and technological landscape.
The FEC’s dysfunction has made it more difficult for political candidates to follow the law and easier for those who are breaking it. It has allowed more than $1 billion in dark money to infiltrate U.S. elections. It has failed to prevent candidates from collaborating extensively with lightly-regulated super PACs. And the FEC has done nothing to respond to Russian meddling in the 2016 election, as documented in the Mueller report.
In a new report, Fixing the FEC: An Agenda for Reform, the Brennan Center provides new statistics that reveal the FEC’s declining output and explains the impact of the commission’s recent paralysis. The report also proposes key reforms that Congress can pursue to help address the agency’s maladies.
The FEC isn’t doing its job because it’s deadlocked
Created in 1975 to enforce the new campaign finance laws that emerged after the Watergate scandal, the FEC is composed of six commissioners, traditionally represented by three Republicans and three Democrats appointed by party leaders. The evenly split structure of the agency means that any substantive action or policymaking requires the votes of at least four of the six commissioners. Historically, the commissioners were able to broker compromises and work together toward enforcing and updating campaign finance laws. But the increasing polarization of U.S. politics has translated into a sharper partisan divide on campaign finance issues and, as a result, within the FEC.
“We live in an era where the two major parties are farther apart on a host of issues, and, sadly, that includes the rules governing our democracy,” said report author Daniel Weiner, senior counsel for the Brennan Center’s Democracy Program and former senior counsel at the FEC. “Campaign finance reform is overwhelmingly popular with voters across the political spectrum, but Republican and Democratic party elites are very divided—and those divisions have trickled over to the FEC.”
One of the FEC’s critical responsibilities is to enforce the campaign finance rules on the books, but it routinely fails to even investigate serious violations because commissioners cannot agree. As a result, in 2016, the agency collected only $595,000 in civil penalties for enforcement cases, compared to $5.6 million a decade before. The Commission’s process for issuing new rules, another critical responsibility, has almost completely broken down—it hasn’t completed a major new rulemaking in well over a decade. Without new rules, the only way for candidates and others to obtain guidance on their legal obligations is to request an advisory opinion from the Commission. But as new data compiled in Fixing the FEC shows, even that process increasingly breaks down, with the agency often failing to reach an agreement on how to answer questions submitted. In fact, the FEC is so paralyzed that it often fails to reach a consensus on even its simplest administrative responsibilities, such as staffing and budgets.
The FEC is out of touch with the modern elections landscape
In the past decade, the legal and technological landscape surrounding U.S. campaigns and elections has changed radically. Politically, one major catalyst for changes was the Supreme Court’s 2010 decision in Citizens United, which permitted corporations to spend unlimited money on elections and led to the rise of super PACs. Since Citizens United, the financing of U.S. elections—and thus political power—has shifted to a small group of wealthy mega-donors, who make multimillion-dollar contributions to groups with close ties to candidates and parties. And technologically, the rapid growth of social media platforms has changed how politicians and others try to influence voters.
But as demonstrated in Fixing the FEC, the agency has essentially done nothing to update its rules in response to either the legal or technological changes of recent years. For example, the Citizens United ruling facilitated the rise of super PACs and unleashed a massive wave of new outside election spending. But the FEC hasn’t updated its rules to even include the term “super PAC,” much less taken into account all the ways super PACs, which are supposed to be independent, actually collaborate with candidates and parties. Another FEC rulemaking standstill involves a routine proceeding, currently stalled, to update disclaimer rules for the types of ads used by Russia to interfere in the 2016 presidential election.
Additionally, the agency has failed to deal with the problem of dark money, which Citizens United created when it allowed so many new groups to spend money on campaigns. Too many of these groups are not required to disclose the identities of their donors, allowing them to spend money on elections while hiding where their money comes from. The lack of effective disclosure rules has allowed more than $1 billion of secret money to pour into U.S. federal elections since 2010, including money from foreign actors.
The FEC has also failed to meaningfully address the role of the internet in political advertising. It last took up this issue in 2006, back when social media played a much smaller role both in daily life and in the political discourse. The commission has stalled for more than a year on a minor rulemaking measure that would increase the clarity of online disclaimers for social media ads. “On issue after issue, the rules just are totally out of date,” said Weiner. “The world has changed immensely. The world of political communication has changed tremendously. The commission has just not kept pace.”
There are solutions—and there is bipartisan support—for fixing the FEC
Despite the agency’s current gridlock, Congress has the ability to combat the dysfunction that currently plagues the FEC. After consulting with more than a dozen other experts who have worked at, studied, or advocated before the FEC, the Brennan Center outlined in its new report a number of reforms that would help make the agency effective again. These reforms include changing the composition of the FEC to include an odd number of commissioners (including at least one political independent) and a real chair person, overhauling the agency’s civil enforcement process, and implementing effective term limits for commissioners.
There is momentum behind FEC reforms, many of which were incorporated into H.R. 1 or the For the People Act—a sweeping democracy reform legislation package that passed the House of Representatives in March and was also introduced in the Senate. The legislation, which marked the first time in decades that a major U.S. political party prioritized comprehensive democracy reform, came largely in response to the 2018 midterm elections, in which voters resoundingly backed efforts to reform voting, redistricting, ethics, and money in politics. Indeed, regardless of their ideological persuasions, Americans overwhelmingly want better campaign finance rules.
“The 2018 election was a watershed for democracy. People care about these issues in a way that they have not demonstrated before,” said Weiner. “This is a moment where democracy reform is front and center, and FEC reform is something that we must tackle if we want to have a more functional electoral process.”
The United States needs a functional Federal Election Commission. And while it’s ultimately up to Congress to determine the country’s campaign finance laws, there is currently no guarantee that those laws are going to be enforced. If lawmakers are serious about protecting the integrity of elections and the political process, fixing the FEC should be high on their priority list.
Read the full Brennan Center report, Fixing the FEC: An Agenda for Reform.
(Image: BCJ/maystra/APK/Peter Stark)