An agency paralyzed by partisan deadlock: Why Congress must reform the FEC
By Eric Dai
The Federal Election Commission (FEC) is the independent federal regulatory agency that holds the all-important responsibility of enforcing campaign finance laws. Because of its inherently partisan structure, however, the FEC is failing utterly to meet its mission.
The FEC is composed of six commissioners, all appointed by the president, and Senate confirmed. To carry out most of its regulatory duties, the FEC needs an affirmative vote of approval from its commissioners. Four votes are required before the FEC takes action, so if the six commissioners split a vote in a 3–3 deadlock, the FEC does nothing and closes the case.
Because Congress anticipated that the FEC could be levied as a partisan weapon, the law that established the FEC decreed that no more than three commissioners could belong to the same political party. While this prevents one of the parties from taking control of the FEC and using it to attack its political adversaries, it creates a different problem — partisan deadlock that prevents the FEC from effectively enforcing campaign finance law. This has only gotten worse over time; from 1975 to 2007, the commission deadlocked on 4.9 percent of all votes, but from 2008 to 2018, that number shot up to 24.1 percent. In 2019 and 2020, the FEC even lacked a quorum of the four commissioners needed for the agency to operate, because then-President Trump failed to nominate replacements after several commissioners had resigned or retired. In short, the partisan nature of the FEC has crippled its regulatory power, sometimes rendering campaign finance laws virtually unenforceable.
Campaign for Accountability (CfA), as a public interest watchdog group, has had first-hand experience with the unfortunate realities of the FEC’s inability to act. In 2016, for instance, CfA filed an FEC complaint against unsuccessful New York Congressional candidate Andrew Heaney, alleging that his campaign illegally coordinated with New York Jobs Council, a super PAC that Heaney seemed to have created. The facts of the case were straightforward — three companies owned by Heaney donated tens of thousands of dollars to New York Jobs Council, and the Federal Election Campaigns Act prohibits candidates from coordinating with their Super PACs or transferring their own money to them. Since Heaney almost certainly directed his companies to donate to their owner’s super PAC, he appeared to be in clear violation of campaign finance law.
It took over three years for Campaign for Accountability to receive a response from the FEC, and the outcome was predictable — the FEC was deadlocked on whether Heaney broke federal law, despite the unambiguous nature of the facts presented. As a result of the “equally divided” commissioner vote, the FEC closed the case, allowing probable campaign finance violations to go unpunished.
Just last week, CfA filed an FEC complaint against the National Rifle Association, alleging that the organization had possibly violated campaign finance law by soliciting and accepting donations from foreign entities. This is not the first such complaint against the NRA. A 2018 complaint alleged that Alexander Torshin, a deputy governor of the Central Bank of Russia, funneled money to Donald Trump’s 2016 presidential campaign via the NRA, while a second complaint alleged that the Trump campaign knowingly used foreign donations run through the NRA. The FEC ultimately deadlocked on both complaints, turning what should have been a simple matter of enforcing campaign finance laws into a partisan issue. This time, CfA hopes that the commission will reconsider its stance, fairly consider the new evidence and base a decision on the facts, not political or ideological considerations.
Ultimately, enforcement of campaign finance laws is crucial to maintaining the fairness of our political system. It is unfortunate that the current state of the FEC has created, as prominent campaign finance lawyer Robert Kelner puts it, “an environment in which there has been virtually no enforcement of the campaign finance laws.” At a time when political polarization, partisan infighting, and eroding democratic norms have weakened public trust in the political process, it is more important than ever for Congress to pass legislation addressing the dysfunction, and turn the FEC into the effective, apolitical regulator of campaign finance that it was meant to — and needs to — be.