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The FEC, Still Failing to Enforce Campaign Laws, Heads to Capitol Hill

Despite progress on a few emerging issues, the FEC still struggles to do its job. Congress should press the agency to do better.

As the 2024 presidential race heats up, attention is once again focused on the perennial problem of campaign finance rules not being enforced. This is likely to be a topic of discussion this Wednesday when members of the Federal Election Commission appear before a congressional committee for the agency’s first oversight hearing since 2011. While the FEC has recently made incremental progress on several emerging regulatory issues, its record of nonenforcement remains largely the same. This problem should be front and center in members’ minds as they question the commissioners.

The FEC is the primary agency responsible for interpreting and enforcing federal campaign finance law. It is also one of the few federal agencies with evenly divided leadership: no more than three of the FEC’s six commissioners can be from the same political party, and under current law, it takes four votes for the commission to act on any significant matter, including deciding to investigate alleged legal violations.

Over the last decade and a half, sharp partisan divisions among commissioners frequently left the agency paralyzed and unable to issue new regulations, provide advisory opinions to political actors seeking to understand their legal obligations, or meaningfully enforce the law.

Recently, the commission has bucked this trend to make some bipartisan progress on a few emerging issues. For example, this year, the FEC enacted rule changes to modestly improve transparency for online political ads, although commissioners modified the text of the final rule shortly before enactment to omit language that would have ensured it covered newer types of campaign communications, like paid influencers. Commissioners also voted to open a proceeding to consider liberalizing rules governing when candidates can use their campaign funds to support themselves and their families while running for office, which would benefit non-wealthy office seekers. What changes they will actually make on this issue remains to be seen.

Unfortunately, there almost certainly aren’t sufficient votes on the FEC to tackle bigger issues that are part of the ongoing legacy of the Supreme Court’s Citizens United decision, which has been the subject of previous rulemaking proposals. And the commission now faces a new test in responding to the emergence of artificial intelligence, which has the potential to revolutionize political campaigns. It already has a new rulemaking petition on this subject before it. 

Of greatest immediate concern, however, is that even the imperfect rules the FEC does have on the books are seldom enforced.

Take the example of coordination between candidates and super PACs. Due to Citizens United, outside groups like super PACs may raise and spend unlimited money on elections so long as they act independently from candidates or political parties. But in the years since that decision, groups have sprung up that work hand-in-glove with political candidates to the point where they are essentially shadow campaigns, resulting in a steady stream of complaints filed with the FEC. The agency almost never pursues these allegations. In the almost 14 years since Citizens United, it has only initiated a handful of investigations into potential violations of the coordination ban, none of which resulted in any fines.

The same goes for dark money from undisclosed sources, which totaled more than $1 billion in the 2020 election cycle and $615 million in the 2022 midterms. The proliferation of dark money is partly a function of gaps in the law — including regulatory gaps the commission could address. But it also results from the fact that many groups that should be required to register as PACs (which have to disclose their donors) simply do not do so. This, too, has resulted in a stream of complaints on which the commission seldom acts.

The FEC’s efforts to prevent foreign spending in U.S. elections are lacking as well. While political contributions by foreign actors are banned, the FEC relies on campaigns and PACs to self-certify that they confirmed the U.S. citizenship of donors with foreign addresses. As the commission’s Office of Inspector General has pointed out, this approach “poses a national security risk and provides insufficient oversight of possible illegal foreign donations.”

In total, the agency has only initiated about a dozen investigations into allegations of foreign spending in the past decade, and when it does occasionally pursue violations, the slow pace and low penalties tend to minimize any deterrence value. For instance, the FEC recently fined a pro-Trump super PAC $25,000 for soliciting a $2 million donation from a fictitious Chinese businessman in late 2016 — almost six years after the fact, for misconduct during a campaign cycle in which the PAC reported spending more than $23 million. Overall, the FEC levied about the same dollar amount in penalties last year as it did in 2004, despite overall spending on federal elections having more than tripled.

What is striking about many of these examples is how often the FEC’s nonpartisan staff in its general counsel’s office recommend moving forward with investigations only to be stymied by the commission itself. For example, information produced in response to congressional oversight requests indicates that although the office has recommended investigations in more than two dozen matters directly involving former president Trump and his associates, the commission hasn’t authorized a single inquiry.

The FEC’s failure to enforce campaign finance law has serious consequences. Beyond the practical lack of important democratic safeguards, the absence of enforcement has helped foster a culture of impunity where some candidates and donors appear to not believe they are beholden to any rules

New proposed changes to the FEC’s enforcement process could make these problems even worse. The commission is considering internal policy changes that would require the general counsel’s office to get approval from the commission on the minutiae of any investigation it recommends launching, from the witnesses it intends to call to the kinds of documents it wishes to consult. As the ranking member of the House committee where commissioners will appear pointed out in a public letter, these changes are legally questionable and, if adopted, would likely cause further significant delays in the enforcement process — to the point where some meritorious cases could literally expire under the statute of limitations.

The FEC’s challenges have been a focus of congressional attention for years. Bipartisan legislation to overhaul the agency was proposed in the last three Congresses. The recently reintroduced Freedom to Vote Act also makes critical changes — most notably by giving the agency’s nonpartisan staff authority to conduct meaningful investigations, similar to their counterparts at most other federal agencies. 

Ultimately, any system of rules is only as good as the body that enforces them. Most Americans want strong campaign finance rules, which require an FEC committed to enforcing duly enacted laws in a timely and evenhanded manner. Congress should use the opportunity presented by this oversight hearing to press the FEC to fulfill its statutory mission. And lawmakers should continue to pursue legislative solutions to make the commission work better.