- A lack of commissioners has largely sidelined the Federal Election Commission during the 2020 elections. Even before that, the nation’s civil campaign finance law enforcer had endured numerous troubles.
- Campaign money reform is a key priority for Democrats now that they’ve won the White House and control both chambers of Congress, several key lawmakers tell Insider.
- “It’s the most dysfunctional agency I know, and unless you think a damaged commission with party loyalists lined up in it is a desirable outcome, you want significant reform,” Rep. David Price, a North Carolina Democrat, told Insider.
- But a former Republican FEC chairman says altering the agency’s bipartisan make-up would be a “serious mistake” that would allow one party to dominate the other — in violation of the spirit in which lawmakers created the agency.
- The FEC will conduct its first public meeting in seven months — and only second since August 2019 — on January 14.
- Visit Business Insider’s homepage for more stories.
Having won two runoff Senate elections in Georgia, Democrats are about to realize the power scenario of which they’ve long dreamt: Joe Biden in the White House and liberals controlling both chambers of Congress.
It’s the best opportunity yet, four members of Congress tell Insider, to execute a plan years in the making. Through legislation, they want put the Federal Election Commission, the nation’s hobbled political money regulator, out of its prolonged misery — then reanimate it stronger than ever.
For most of the 2020 election, the bipartisan FEC simply lacked the four commissioners legally required to enforce laws and regulate the actions of the thousands of political committees and actors under its purview — prompting some Democrats to call for extreme action.
“We need to stop treating the agency that’s charged with keeping corruption out of our elections like a political pawn,” said Sen. Amy Klobuchar of Minnesota, the Rules Committee’s ranking Democrat and 2020 presidential candidate.
Rep. David Price, a North Carolina Democrat, told Insider that the FEC “is the most dysfunctional agency I know, and unless you think a damaged commission with party loyalists lined up in it is a desirable outcome, you want significant reform.”
Amid other pressing priorities — economic aid, healthcare, infrastructure — the nascent 117th Congress has already taken initial steps in this direction, this month introducing a new version of H.R. 1, a sweeping “democracy reform” bill that includes a major FEC overhaul.
An emboldened, Democrat-led Congress will aim to reduce the number of FEC commissioners from six to five — similar to the makeup of the Federal Trade Commission and Federal Communications Commission — thereby nixing frequent deadlocks along ideological lines.
Other proposed reforms, both included in H.R. 1 and not, include giving the FEC a slate of new enforcement and administrative powers, restricting how political candidates and super PACs may coordinate efforts, forcing political candidates to give away unused campaign cash — even changing the FEC’s name to the “Federal Election Administration.”
Democratic Rep. John Sarbanes of Maryland, the lead sponsor of H.R. 1, said the FEC “dysfunctional and toothless” in its current form.
He told Insider that the government must reform the commission’s structure in order to “effectively combat corruption, reduce the undue influence of wealthy donors and corporations, sniff out foreign money in our political system, and restore trust in our democracy.”
Created in the aftermath of the Watergate scandal, the FEC is an independent agency where no more than three commission seats may be occupied by any one party. This, by design, aims to ensure that neither Democrats nor Republicans dominate decision-making.
Especially in recent years, this has sometimes led to ideological paralysis. But the FEC just endured the lowest point of its 46-year history.
Save for a few weeks in June and July, the FEC lacked enough commissioners from September 2019 to mid-December 2020 to conduct any high-level business. With only three commissioners and no quorum, the commission could not “hold hearings, issue rules, or enforce campaign finance law and regulation,” as the federal government’s own Congressional Research Service reminded legislators in a report last month.
Beyond that, the FEC hasn’t had a duly appointed general counsel since 2013. It endured an embarrassingly sloppy search — that included errors, infighting, even a case of sabotage — for a top internal watchdog.
ProPublica in October reported that a top FEC staffer has openly supported President Donald Trump’s campaign. Even Comedy Central delights in razzing the agency, once suggesting that it’s as useful as “men’s nipples.”
It’s “completely off the rails” to have conducted the presidential and congressional elections without a fully functioning FEC, said Rep. Derek Kilmer, a Washington Democrat who has called for reforms to the agency.
“This is about getting the referees back on the field,” Kilmer told Insider. “What the American people want and expect is that laws will actually be enforced.”
Even though Democrats are poised to control both the House and Senate, they will likely have to weigh whether to fully nuke the Senate filibuster in order to ram through highly contentious measures such as FEC reform.
And don’t expect soon-to-be Senate Minority Leader Mitch McConnell, a fierce defender of the campaign money status quo, or many of his GOP colleagues to let Democrats steamroll them on campaign finance reform initiatives.
History also offers conservatives some comfort, in that liberals’ love for the “fierce urgency of now” — a concept from Martin Luther King Jr. adopted by President Barack Obama — hasn’t always extended to the nation’s campaign finance enforcer.
Democrats controlled the White House and both chambers of Congress during the 2009-2010 session but failed to advance any meaningful campaign finance reform legislation, despite Obama’s pledges to prioritize campaign money and political ethics issues.
Obama’s lone nominee to the FEC during his first term, labor lawyer John J. Sullivan, withdrew from consideration in 2010, frustrated with a confirmation process that had dragged on for 15 months.
Democrats also powerlessly lamented the 2010 Supreme Court’s 5-4 decision in Citizens United v. FEC, which empowered corporations, unions, and certain nonprofit groups to raise and spend unlimited amounts of money to advocate for and against political candidates.
More recently, the Democrat-controlled Committee on House Administration, which oversees the FEC, never made good on a promise to conduct the first public oversight hearing of the agency since 2011. The committee postponed and never rescheduled a hearing that was supposed to happen in September 2019.
‘Basically the same ol’, same ol”
For some conservatives, efforts to dramatically remake the FEC will cause oversight of US elections to become more partisan, not less.
“Having an election commission under partisan control of the president’s party, which is what this would amount to, is a serious mistake,” said Bradley Smith, a former Republican FEC chairman and president of the Institute for Free Speech, a nonprofit that supports campaign finance deregulation.
Even though Democrats propose appointing an “independent” FEC chairperson alongside two Democrats and two Republicans as part of a reconstituted five-member agency, Smith suggested liberals may try to “pack” the agency with a left-leaning chairman all but guaranteed to take their side.
“It’s basically the same ol’, same ol’ — ‘how can we use campaign finance rules to harm our political opponents?'” Smith asked.
Michael Toner, another former Republican FEC chairman who’s now a partner at law firm Wiley Rein LLP shares the same concerns.
“There’s potential for partisan abuse,” Toner told Insider.
But Ellen Weintraub, a Democrat who’s served as an FEC commissioner since 2002, argues whether the commission functions well “all depends on who the commissioners are” — and not so much whether the panel has an even or odd number of members.
What “unconscionable,” she said, is that the FEC has been allowed to languish during most of the 2020 election and has been “completely sidelined, which is very bad for the system and very bad for democracy.”
The Biden campaign declined to comment on how it would approach campaign finance reform if Democrats controlled Congress. It instead directed questions to its campaign finance reform platform, which calls for a host of changes to election law.
Biden’s plan only makes a passing mention of the agency but calls for the creation of a “Commission on Federal Ethics,” which would have “broad investigative and civil enforcement authority, expanding on powers now held by the FEC,” the Office of Government Ethics, and the Office of Special Counsel.
Many of Biden’s campaign money plans track with those enshrined in H.R. 1, such as restricting super PACs, and banning “dark money” in politics.
A few are decidedly aspirational — and almost impossible, given the nation’s political divisions, such as amending the US Constitution to “require candidates for federal office to solely fund their campaigns with public dollars, and prevent outside spending from distorting the election process.”
Finally, a quorum
After nine months of inaction, the FEC stripped of its high-level powers, Trump in June nominated Republican Allen Dickerson to join the commission following the resignation of long-time Republican Commissioner Caroline Hunter.
Then, in October, Trump nominated Sean Cooksey, general counsel to Sen. Josh Hawley, a Missouri Republican, and Democrat Shana Broussard, a long-time staff attorney for current independent FEC commissioner Steven Walther, to fill seats vacated in 2017 and 2018.
In December, the Senate confirmed the three new commissioners. The agency now has a full complement of six commissioners for the first time in nearly four years. And Broussard, who will serve as FEC chair this year, is the first Black commissioner in the agency’s history.
On January 14, the FEC scheduled to conduct only its second public meeting since August 2019.
Republican Commissioner Trey Trainor, who served as chairman for the second half of 2020, noted that the 300-plus employee FEC, even in its weakened state, still processed and published campaign finance disclosures and attending to other behind-the-scenes business in preparation for the day it regained quorum.
But the FEC’s campaign finance enforcement case backlog — now about 400 cases — continued to grow. New cases were put on hold. Politicians and their backers potentially violating laws avoid investigation, at least temporarily.
A few organizations with complaints stalled before the FEC have even sought redress in federal courts.
“I have no problem with this,” Weintraub said of groups turning to the courts for FEC-related grievances.
But that tactic, which is legal, has concerned some conservatives.
“It would be better if the commission had a quorum and could act on the pending complaints, and I hope that happens soon,” Trainor said. “But in the meantime, the system faces longer-term harm if the courts, or even worse, private parties, take over the role of the commission.”
A host of government reform-minded organizations, including the League of Women Voters and Brennan Center for Justice, are pushing for a wholesale restructuring of the FEC. Expect them to lobby Congress hard in 2021 if Democrats control the legislative branch and White House.
“Democrats cannot have any credibility if this is not at the top of the list,” said Meredith McGehee, executive director of the nonprofit election reform organization Issue One. “If this is not a priority, then the Democrats’ words are empty.”
Toner, the former Republican FEC chairman, predicted Democrats will this time deliver on FEC reform, if they sweep the Senate and the White House and hold onto their House majority.
“I’d be really surprised if we don’t have a new kind of FEC by 2022,” he said. “There’s just so much pent-up demand in the Democratic Party, especially the left-wing of the Democratic Party.”