Skip Navigation
Archive

Reform the FEC to Ensure Fair and Vigorous Law Enforcement

The Brennan Center’s Democracy Agenda outlines a series of concrete proposals that the next President and Congress should embrace to improve democracy in America.

Published: February 4, 2016

Read our 2018 Demo­cracy report here.

Even if we adop­ted all these propos­als to revital­ize demo­cracy, they would be mean­ing­less — as would exist­ing campaign finance regu­la­tions — if they were not enforced vigor­ously and fairly. Today, current laws on matters such as disclos­ure and coordin­a­tion go largely unen­forced because the Federal Elec­tion Commis­sion’s (FEC) refuses to act. FEC penal­ties have dropped markedly in recent years, and dead­locks on vari­ous decisions have sharply increased — despite dramatic spikes in spend­ing, the agency in 2014 issued the lowest amount of fines (meas­ured by total dollar amount) since the current penalty system began in 2001.[1] Many observ­ers, includ­ing the agency’s own chair­wo­man, deride the FEC as inef­fec­tual.[2]

There are several causes for the FEC’s dysfunc­tion. Most signi­fic­ant is the Commis­sion’s struc­ture: It is composed of six commis­sion­ers, three Repub­lic­ans and three Demo­crats. The result is a large number of party-line votes that result in inac­tion. Yet the 3–3 split does not stem from the type of partis­an­ship one might expect, with Repub­lic­ans will­ing to enforce the law only against Demo­crats, and vice-versa. Instead, the divide is more starkly ideo­lo­gical. GOP commis­sion­ers are often unwill­ing to invest­ig­ate poten­tial viol­a­tions against members of either party, and are unlikely to consent to any new rules impos­ing tougher restric­tions.[3] In large part, this ideo­lo­gical divide was created because pres­id­ents have tradi­tion­ally deferred to the lead­ers of each party in Congress when appoint­ing commis­sion­ers, and the FEC’s dead­lock reflects the similar prob­lem on Capitol Hill.[4]

Proposal

The first step to reform­ing the FEC is for the pres­id­ent to break with tradi­tion and stop allow­ing congres­sional lead­ers to pick commis­sion­ers. Instead, the pres­id­ent could appoint highly respec­ted, nonpar­tisan commis­sion­ers, such as retired judges, academ­ics, and busi­ness or community lead­ers, who could help end the partisan dead­lock.

It is also vital that Congress change the struc­ture of the FEC — includ­ing the number of commis­sion­ers and the process for select­ing them — so the agency can move forward with enforce­ment actions and does not dead­lock on import­ant votes. For example, Congress should change the number of commis­sion­ers from six to an odd number. A nonpar­tisan selec­tion mech­an­ism for one or more commis­sion­ers, as was done in Wiscon­sin for years, could also reduce polar­iz­a­tion. To ensure a back­log does not hamper the oper­a­tion of the law, a new meas­ure could create a nonpar­tisan enforce­ment posi­tion within the Commis­sion, with broad author­ity to invest­ig­ate poten­tial viol­a­tions and issue penal­ties, subject to the commis­sion­ers’ over­ride.

In June 2015, a bipar­tisan group of House members intro­duced a prag­matic bill that would imple­ment many of these FEC reforms.[5] The meas­ure would reduce the number of commis­sion­ers from six to five, make the fifth commis­sioner a nonpar­tisan member, and provide for the agency to have a perman­ent chair with a 10-year term. It would also create a “blue ribbon advis­ory panel” to help the pres­id­ent choose commis­sion­ers, and give the nonpar­tisan chair vari­ous admin­is­trat­ive and invest­ig­at­ory powers. The next Congress should act quickly to pass this proposal or a similar one to end the lawless state of federal elec­tions.

Resources

  • Restor­ing Integ­rity to Amer­ica’s Elec­tions Act: A bipar­tisan bill sponsored by Reps. Derek Kilmer (D-Wash.) and Jim Renacci (R-Ohio) to reform the FEC.
     
  • Comment to the FEC: Fix Campaign Rules to Address 'Citizens United’ and Other Supreme Court Decisions: Testi­mony urging the FEC to close loop­holes in its disclos­ure and coordin­a­tion regu­la­tions.

Next Section: Redis­trict­ing


[1] Eric Licht­blau, F.E.C. Data Shows Campaign Fines Hit Record Low in 2014, N.Y. Times, May 5, 2015, http://www.nytimes.com/2015/05/06/us/polit­ics/fec-says-campaign-fines-hit-record-low-in-2014.html. The almost $600,000 in fines assessed in 2014 amoun­ted to about 10% of the $5.9 million in fines issued in 2006.

[2] Craig Holman, Broken FEC is making a mock­ery of campaign finance laws, Sacra­mento Bee, Apr. 1, 2015, http://www.sacbee.com/opin­ion/op-ed/soap­box/article17130476.html, Eric Licht­blau, F.E.C. Can’t Curb 2016 Elec­tion Abuse, Commis­sion Chief Says, N.Y. Times, May 2, 2015, avail­able at http://www.nytimes.com/2015/05/03/us/polit­ics/fec-cant-curb-2016-elec­tion-abuse-commis­sion-chief-says.html.

[3] Melanie Sloan, No vote of confid­ence for FEC, Politico, Apr. 30, 2013, http://www.politico.com/story/2013/04/no-vote-of-confid­ence-for-fec-090783.

[4] Reform­ing the Federal Elec­tion Commis­sion, Citizens for Respons­ib­il­ity and Ethics in Wash­ing­ton, http://www.citizens­for­e­th­ics.org/policy/entry/reform­ing-the-fec.

[5] Press Release, Rep. Derek Kilmer, Kilmer, Renacci Intro­duce Bipar­tisan Bill to Fix Amer­ica’s Elec­tion Watch­dog (June 26, 2015), avail­able at http://kilmer.house.gov/media-center/press-releases/kilmer-renacci-intro­duce-bipar­tisan-bill-to-fix-amer­ica-s-elec­tion