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Analysis

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.

April 30, 2019

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)