What’s to be done about the Federal Election Commission?
Commissioner Matthew S. Petersen, who joined the FEC in 2008, recently resigned. His departure further depletes the commission, which is supposed to have six members but is now down to three, all of whom are on “holdover status” because their terms expired long ago.
The FEC requires four members for a quorum, so it’s now unable to determine whether laws have been violated or to impose fines for transgressions. It was already in retreat. From 1999 to 2008, the FEC levied $33.6 million (inflation-adjusted) in fines for campaign finance violations. From 2009 to 2018, as partisan gridlock on the commission grew more intense, the fines declined to less than $12 million, according to the Campaign Legal Center, a pro-regulation advocacy group. The decline occurred despite both soaring campaign spending and the advent of ever dodgier ways of deploying money.
Inertia is powerful at the FEC, even when it’s fully staffed. No more than three commissioners may be from the same political party, which in practice has produced a great many 3-3 stalemates between Democratic and Republican members. Recently, the stalemates have been rendered 2-2, as when the commission gridlocked over an investigation into links between the National Rifle Association, a prodigious campaign spender, and Russian nationals. Without consensus, the investigation was shelved.
The FEC is weak by design. Congress didn’t want an aggressive cop on the campaign beat, and some of its reasons were democratically sound, if also self-serving. Elections, after all, should be decided by voters, not regulatory bureaucracies.
Still, the rules must be enforced if elections are to be fair — and seen to be fair. With the 2020 election fast approaching, it’s an inauspicious moment to disable the federal election watchdog — especially when the president’s personal lawyer is already busy soliciting campaign help from a foreign government and the U.S. attorney general has publicly equivocated about whether it’s improper for agents of hostile foreign nations to provide political dirt to U.S. campaigns.
The FEC continues to do vital work in processing, and disclosing, financial reports from campaigns and political committees, including the campaigns of Democratic candidates for president. Normally, it engages in rule-making, issues advisory opinions and offers advice to campaigns seeking to function within the law. But to perform such tasks, the commission needs commissioners.
In 2017, President Donald Trump nominated Texas lawyer James “Trey” Trainor III to serve on the FEC. The nomination went nowhere. Trump resubmitted it this year, but the Senate, which is not known to be overburdened by legislation, has not held a confirmation hearing.
The president should pick a full slate of new commissioners: three Democrats and three Republicans, chosen with careful input from senators of both parties. If that’s too much efficiency to ask of a haphazard White House, then add the FEC to the list of repairs facing the next president and the next Senate. With luck — and, let’s hope, a fair election — they’ll address it.
— Bloomberg News
