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FEC Dormant Heading into 2020 Election

Congress must fix the Federal Election Commission so that it can do its job of enforcing campaign finance law.

July 29, 2020

This piece was originally posted in the Seattle Times.

For the second time in less than a year, the Federal Election Commission — the main enforcer of federal campaign finance law — has been rendered essentially dormant. A commissioner’s resignation earlier this month leaves the FEC without a quorum heading into one of the most fraught and expensive general elections in American history.

This latest development follows a decade of partisan gridlock that has left the agency notoriously dysfunctional, unable to appropriately address some of the biggest threats to our democracy like the proliferation of dark money in elections, and foreign governments using social media and other means to influence American voters.

Congress can help fix the agency with reforms that will enable the FEC to better fulfill its three most critical responsibilities: enforcing campaign-finance laws already on the books, issuing new rules to clarify legal obligations, and providing guidance to candidates and other political actors. 

The FEC was created in the wake of the Watergate scandal to help guard the integrity of our political process. It has six commissioners when fully staffed, no more than three of whom can be from the same political party. By longstanding tradition, the two major parties each take half the seats, with presidents typically nominating members of the opposing party selected by Senate leaders. Four affirmative votes are required for the FEC to take most actions of consequence.

The FEC first lost its quorum in August 2019 when a commissioner resigned, leaving three seats vacant. He was not replaced until this May, after the White House and Senate Republicans broke with tradition and pushed through a single GOP nominee, ignoring the individual advanced by Senate Democrats to fill a vacant seat normally held by Democrats. This month’s resignation leaves the FEC right back to where it was last year.

Losing the quorum could be especially consequential in an election season that has been upended by the COVID-19 pandemic, with campaigns increasingly moving online. Say a candidate wants to pay online influencers for endorsements — do they need to disclose they are being paid?

The relevant laws mostly date back to the 1970s and don’t address digital realities of 2020 campaigning. But with a quorum, the FEC could provide guidance, at least in the form of an advisory opinion if not a formal rule. Most candidates want to follow the law. An immobilized FEC makes their job harder, while unscrupulous actors will have even more latitude to flout the rules.

Over the long term, we need to do much more than restore the FEC’s quorum. The root cause of its dysfunction is that the two parties have become increasingly polarized over the role of money in politics. The GOP (or at least its leaders in Washington, D.C.) increasingly opposes most efforts to regulate campaign money. Democrats, meanwhile, are more supportive of regulation than they used to be.

Because commissioners tend to be highly responsive to views of the party leaders in the Senate who selected them, it’s hard to find enough common ground for meaningful action, as my organization, the Brennan Center for Justice, documented in a report last year.

This is especially evident with respect to enforcement, where the FEC often sits on reports of violations for years and then deadlocks on whether to even investigate them. Meanwhile, the agency’s rule-making process has virtually ground to a halt, which among other things has allowed well over $1 billion in dark money to flood into federal campaigns. The FEC has also done virtually nothing to respond to the overwhelming evidence of Kremlin interference in the 2016 presidential election documented in the Mueller Report and elsewhere.

For the FEC to become a functional guardian will require a significant overhaul by Congress. It should include reducing the number of commissioners from six to five, with no more than two from either major party. The fifth commissioner should be a tiebreaking independent. Lawmakers should also help ensure agency accountability by requiring that the president appoint a real chairperson to oversee the FEC’s administrative needs and operations.

Congress must ensure more regular and predictable turnover by ending commissioners’ ability to hold over indefinitely past the expiration of their terms (the two who recently resigned were both George W. Bush appointees whose terms had long expired).

Finally, the commission’s enforcement process should be streamlined, including by allowing its dedicated nonpartisan staff to investigate potential legal violations and dismiss frivolous complaints without getting commissioner approval.

These changes are included in H.R.1, the For the People Act, historic democracy reform legislation passed last year by the House, and in separate legislation sponsored by U.S. Rep. Derek Kilmer, D-Wash.

If we are going to have campaign-finance laws and rules on the books, they should be enforced. The FEC’s inability to do its job and enforce safeguards that most Americans strongly support breeds confusion and cynicism that we can ill afford at a time when our democracy faces so many other challenges. Fixing this problem is long overdue.