Reforming The FEC: Effective Commissioners Are Needed
Caplin & Drysdale’s Trevor Potter authored the October 26, 2020 op-ed “Reforming The FEC: Effective Commissioners Are Needed” for Law360. Below is the full op-ed, and please visit this link to view the op-ed as it appears in Law360.
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The Federal Election Commission, enacted in 1974 as the cornerstone of the post-Watergate reforms, is the sole federal agency tasked with overseeing federal campaign finance laws. It was designed to be independent, responsive and effective. Today's FEC does not meet those goals.
For its first 25 years, the agency was at least reasonably energetic and effective in enforcing campaign finance law and writing new regulations responsive to changes in our electoral system. Thereafter, the commission began a steady slide into the practically defunct organization that it is today.
Since 2012, the FEC has issued one substantive new regulation: REG 2014-02, regarding how to report multistate independent expenditures and electioneering communications.
Despite their dominance in our current state of politics, super PACs are still not even mentioned in FEC rules. The commission now deadlocks on the majority of important enforcement matters — that is, when it even has a quorum; the FEC has been without one for 12 of the past 13 months, unable to vote on anything substantive in the middle of a presidential election cycle.
This is the height of dysfunction. The FEC's complete inaction poses a severe threat to our democracy, but some congressional leaders want it to be this way. Commissioners are nominated by the president and confirmed by the Senate, and over the past two decades, Sen. Mitch McConnell, R-Ky, and like-minded allies have prioritized confirming commissioners who are ideologically opposed to the mission of the agency in order to render it inoperative.
The strategy came at the suggestion of Don McGhan, according to former FEC Commissioner Ann Ravel. Around 2005, he suggested to McConnell that by appointing a bloc of Republican commissioners opposed to campaign finance law, he could ensure nothing got done. McGhan was appointed, along with two other commissioners, and they proved the plan of action effective.
Since, McConnell has been deeply involved in personally selecting FEC nominees: According to a former chief of staff, of all the agencies where McConnell vetted nominees, "the one that I know of where McConnell himself interviewed every single person was the FEC."
The result has been an FEC where half of the commissioners are committed to dismantling everything that the agency stands for.
It hasn't always worked like this. When I was on the commission from 1991 to 1995, other commissioners and I would disagree from time to time on how to enforce the law, but we did agree that it was the FEC's job to faithfully implement and uphold campaign finance laws passed by Congress. In fact, I can only recall one instance during the four years I served on the commission where we deadlocked.
Contrast that with today. Though the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission actually upheld disclosure laws, the FEC has deadlocked on every proposed disclosure rulemaking since the landmark campaign finance decision.
After Citizens United, the FEC took more than four years to agree on any regulatory action; the Democratic commissioners wanted to implement the disclosure part of the Citizens United opinion, and the Republicans refused to do so — they insisted on only removing the ban on corporate expenditures from the regulations, but did not allow a word on implementing the opinion's mandate for disclosure.
The FEC's enforcement responsibilities are suffering, too. In order to take action on investigating or punishing a candidate or group's violation of campaign finance law, the agency requires a majority vote.
The FEC admitted to the committee on House administration that the agency had at least one deadlock on the majority of enforcement votes since 2012. The FEC does not just occasionally deadlock; it mostly does. Not only this, but the FEC is holding fewer votes in the first place: Between 2003 and 2007, the FEC averaged 727 votes on enforcement actions per year. Between 2008 and 2015, that number dropped to 183.
The FEC's dysfunction has led to an explosion in secret spending, increasingly rigging campaign finance in favor of special interests. This election cycle, political spending by dark money groups — groups that do not have to disclose their donors — is set to exceed $1 billion in known expenditures.
The true number is clearly significantly higher than that, as these entities face significantly less stringent requirements on digital platforms. Our politicians have become more responsive to those major sources of election finance than they are to average Americans, and the FEC, rather than resist this trend and faithfully administer federal campaign finance law's transparency requirements, has instead paved the way for so-called dark money.
An August decision from the U.S. Court of Appeals for the District of Columbia Circuit highlights this.
In Citizens for Responsibility and Ethics in Washington v. FEC, the court affirmed that FEC rules impermissibly allowed groups to spend large sums of money in federal elections without disclosing critical information about their funders. In issuing a win for transparency, the court's decision also demonstrates that the FEC bears much of the blame for the explosion of dark money we've seen since Citizens United.
Though the FEC's disclosure rule was on the books far before Citizens United was decided, the implications of the rule changed drastically when the landmark 2010 decision ushered in a new era of secret election spending. As a result, the FEC's narrow rule allowed up to $769 million in dark money to flow into our elections between 2010 and mid-2018, and the FEC did nothing — despite many groups urging the FEC to address the problem.
The consequences of FEC dysfunction are grave and have fast-tracked the unraveling of our country's campaign finance infrastructure enabled by detrimental Supreme Court decisions. That being said, there are attainable measures we can take to reform the FEC and hold dark money groups accountable.
Congress can take the critical step to address structural barriers to FEC accountability. Legislation to do this has already passed the House: H.R. 1, the For the People Act, includes several FEC reforms.
It would amend the law so that a deadlock would no longer block Office of General Counsel recommendations to open investigations into alleged violations of law.
It would also change the number of commissioners from six to five to prevent deadlocks, and it would create a nonpartisan advisory panel to identify qualified candidates for the president's potential nominations, so that the president is encouraged to select commissioners who believe in the mission of the FEC get to serve.
Passing H.R. 1 is a necessary step toward a better functioning FEC, but the president need not wait for Congress. The simplest way to make the FEC functional again is for a president to nominate, and for the Senate to confirm, commissioners of any party who believe in the agency's mission.
Recent administrations, both Democratic and Republican, have not prioritized the nomination of committed FEC commissioners but instead have deferred to party leaders in Congress, but any president has the authority to use good nominations to strengthen the FEC.
There is no shortage of opportunities to appoint such commissioners: The FEC currently only has three out of six of the authorized commissioners, two of whom are serving expired terms. Both candidates should not only commit to restoring the agency to a quorum, but to nominating only candidates with a record and background demonstrating commitment to the enforcement of duly enacted campaign finance laws and regulations that protect the transparency and fairness of our elections.
American voters across the political spectrum consistently rate corruption in the political spectrum among their top concerns facing our democracy. It's past time for our elected officials to stop undermining the will of the people by refusing to appoint and confirm commissioners who will uphold the law. The FEC must be reformed to stop corruption and protect the voices of all Americans.