Experts have recently raised alarms concerning the Federal Election Commission (FEC) and its current state.
Following the term end of former commissioner Allen Dickerson in April, the FEC now faces the challenge of having six members, a situation it has found itself in for the third time. This lack of quorum restricts the FEC from performing numerous essential functions, such as holding meetings, launching investigations, and imposing penalties on potential violators.
The apparent delay in filling these vacancies could lead to a significant case backlog, especially with midterm elections on the horizon.
“When there aren’t enough commissioners to fulfill the FEC’s responsibilities, it really slows everything down,” said Michael Beckel, senior research director at the Issue 1 group, which focuses on democracy, elections, and governance in the U.S.
“Without a quorum, the FEC is essentially a watchdog that can’t take action,” he added.
This current lack of quorum is somewhat rare in the agency’s 50-year history, though it has occurred before, notably in 2008 near the end of George W. Bush’s presidency. At that time, political pressure helped resolve the FEC’s operational stall, particularly when Republican candidate John McCain was utilizing public funds that required FEC approval.
Since then, however, Beckel has noted that the dynamics have changed, with fewer candidates relying on public funds, making it hard to foresee similar pressures emerging to break the logjam.
Other instances of vacancy occurred during Trump’s early administration in 2019 and 2020, where, despite filings still being accepted, the FEC could not issue fines or conduct audits. This new absence of quorum has already led to the cancellation of two scheduled public meetings.
The ongoing situation could echo challenges faced by previous commissioners like Dickerson, Shana Broussard, and former chairman Shawn Cooksey back in December 2020 when they were confirmed amidst previous quorum losses.
Dickerson explained that the backlog issues stemmed from as far back as the 2016 election cycle, with commissioners struggling to manage limited budgets and time constraints while tackling complex cases.
He felt that Broussard played a vital role in addressing the backlog during her tenure as vice-chair in 2021.
“We were committed to bringing the committee back to a functional state, dealing with old cases that were complex and challenging,” Dickerson recalled. “It took a lot of hard work and late nights.”
The implications of the FEC’s current quorum shortage largely hinge on its duration and the volume of complaints received, often not discussed adequately in terms of necessary action rather than legal obligations.
Dickerson acknowledged ongoing concerns about the FEC’s ability to engage in rule-making or provide guidance on pressing public inquiries.
“As we approach the elections, there’s a growing need for clarity on legal questions from the FEC,” he said. “This is often an underrated but crucial function.”
Cooksey’s resignation coincided with the start of Trump’s term, where he anticipated Trump would swiftly nominate a new commissioner. It’s important to note that commissioners can remain in their roles after their terms expire until replacements are confirmed.
Currently, two of the three sitting commissioners, Broussard and James Trainer III, are serving on expired terms.
Despite this, Trump declined to nominate Democrat Ellen Weintraub in February, leaving her seat unfilled. Weintraub argued that her removal was unlawful, resulting in an ongoing vacancy.
In a recent statement, she emphasized the situation, noting that new commissioners haven’t stepped in to fill resigned positions, which has contributed to the FEC’s quorum issues.
“This is a standard process that should have occurred in my case, and if I had been replaced appropriately, we wouldn’t be dealing with a quorum shortage today,” she commented.
The Hill has sought comments from the White House regarding Trump’s plans for appointing an additional commissioner, while the FEC has chosen not to address the vacancies or potential candidates.
Even though there was a notable lack of quorum during Trump’s presidency, previous administrations often allowed commissioners to remain in their roles even after term expirations.
Dickerson stated that he doesn’t view this as indicative of broader issues regarding prioritization but rather as a reflection of the FEC’s limited capacity within the government structure.
“It’s crucial that these seats get filled for the sake of the Republic, fostering significant bipartisan collaboration in their decisions,” he remarked. “However, I wouldn’t apply the broader government’s decision-making to a smaller agency like the FEC.”
Beckel cautioned against interpreting the quorum loss as an invitation for candidates to skirt the rules of the Campaign Finance Act, asserting that intentional violations could still lead to prosecution by the Department of Justice and allow for complaints to be lodged with the FEC.
Nevertheless, Weintraub and reform advocates remain concerned that the current loophole might be exploited by those willing to commit violations.
Omar Noureldin, Senior Vice President of Policy for Common Cause, pointed out declining enforcement priorities from the DOJ following a series of resignations spurred by controversies.
“The evident shift in focus shows enforcement isn’t prioritized,” he said, noting that while state laws still regulate campaign finance, they cannot match the enforcement capabilities of the FEC.
However, there’s concern about what potential new members from the Trump administration could represent. Elinchiropack, director of campaign finance at the Campaign Legal Center, noted that Trump has exerted control over federal agencies, including the FEC, which contradicts the agency’s intended independence.
“That independence is vital for effectively carrying out its responsibilities,” she stressed. “If that comes into question, it raises additional concerns about the reinstatement of the quorum during this unique period.”
