Since its founding in 1974, the Federal Election Commission has long been regarded as an ineffective agency, garnering criticism as a “toothless tiger” or a “tightly leashed watchdog.” The panel has a maximum of six members, with no more than three from one party.
Since 2006, an increasingly high number of deadlocked votes result in dismissals of allegations of misconduct; deadlocks are effectively victories for the Republican commissioners.
Party loyalty appears to be less important to commissioners than ideology. Democrats favor the zealous implementation of campaign finance laws, while Republicans believe money is a form of protected free speech and favor less regulation.
Dismissed FEC cases relating to the 2016 presidential election illustrate this pattern.
One allegation implicated then-candidate Donald Trump in the $130,000 payoff of “hush money” to Stephanie Clifford, the former adult film actress known as “Stormy Daniels,” who said she had an affair with Trump 10 years earlier. The FEC, voting more than three years after the initial complaint was filed, deadlocked 2-2 along party lines. Republican commissioners Sean J. Cooksey and James E. “Trey” Trainor III concluded that “pursuing these matters further was not the best use of agency resources.”
FEC Chair Shana M. Broussard and commissioner Ellen L. Weintraub, both Democrats, countered that the FEC had failed to investigate whether Trump “knowingly and willingly accepted contributions nearly 5,000% over the legal limit to suppress a negative story mere days before Election Day.”
In another case from 2016, the FEC deadlocked on a vote to investigate an attempt by the Trump campaign to solicit funds directly from foreign nationals. In a sharply worded statement, Weintraub wrote that while the commission “has publicly committed to prioritizing complaints regarding foreign national contributions, the true priority of my Republican colleagues appears to be to dismiss any Trump-related matters.”
But the same lax enforcement has extended to Democratic candidates as well.
When two Democratic-aligned commissioners voted to investigate a complaint that Hillary Clinton’s 2016 presidential campaign illegally coordinated with Correct the Record, a pro-Clinton “hybrid” PAC, two other commissioners, both Republicans, dissented and the panel deadlocked 2-2.
Weintraub said in a statement of reasons that her Republican colleagues “have never seen a case of coordination that they were willing to pursue.”
The FEC has other systemic problems.
Commissioners are appointed to six-year terms but often stay longer if no one is appointed to replace them. Three of the six current commissioners are “holdovers” whose terms have expired. Weintraub’s term expired in 2007; as she told the IRW in a 2016 interview, “I have packed my boxes several times thinking I was about to be replaced, and it never actually happened.”
(A closer look at those on “holdover” status. )
Beginning in 2019, resignations left the FEC without a quorum of four members for the first time since 2008. For months at a time, including most of the 2020 election cycle, the FEC was unable to carry out its basic functions such as making rules, conducting audits or voting on investigations. Civil penalties for violations decreased from more than $2 million in 2019 to just over $70,000 in 2020, the lowest since 1981.
By the end of 2020, three new commissioners were confirmed and sworn in, restoring the FEC to full capacity for the first time since 2017.
But even with six members, the panel faced a backlog of more than 400 unresolved matters. And the pattern of commissioners deadlocking on high-profile allegations remains consistent: a complaint is filed, FEC lawyers recommend an investigation, Republicans oppose it and the case is dismissed.
As former FEC commissioners Trevor Potter and Ann M. Ravel argued in a letter to congressional leaders this year, “Republican commissioners largely refuse to enforce the law against anybody, Democrat or Republican.”
In a separate letter to Congress, a group of nine Republican former commissioners denied an increase in the rate of deadlocking votes, writing that “the complaints about ‘deadlocks’ come from the regulatory activists who haven’t gotten their way.” (However, an authoritative study published last year in the peer-reviewed Election Law Journal concluded that “the evidence supports the claim that partisan conflict has come to characterize commission voting patterns, with deadlocks on commission actions skyrocketing in recent years.”)
Weintraub has contended that the commission is unable to fulfill its core mission as a campaign finance watchdog.
“There is no leverage — ever — for anyone who wants to vigorously enforce the law,” Weintraub wrote in May 2019. “The advantage always falls to those who want to do less.”
Good-government groups agree that the FEC is broken.
“The FEC is completely failing as a law enforcement agency, which is part of its core mission,” said Adav Noti, senior director of trial litigation and chief of staff at the nonprofit Campaign Legal Center.
The Campaign Legal Center and other campaign finance reform groups, including Issue One, Common Cause and Democracy 21, have advocated for structural reform to the FEC. One key recommendation is that the commission reduce its size from six members to five, with no more than two members from any party, and one independent to break tie votes.
A sweeping voting bill known as the For the People Act, which narrowly passed the House in March but was blocked in the Senate by Republicans in June, would have included that reform.
On September 14, Senator Amy Klobuchar (D-Minn.) introduced a new bill called the Freedom to Vote Act, with similar provisions, such as requiring certain “dark money” nonprofits to disclose their major donors. Both bills also contain provisions extending the FEC’s statute of limitations for pursuing enforcement of campaign laws from five years to 10.
Senate Minority Leader Mitch McConnell has criticized these legislative proposals, calling the For the People Act “a partisan power grab,” and warning that such a change would “turn the Federal Election Commission into a partisan-majority cudgel for Democrats to wield against their political opponents.”
Ravel, the former FEC chair, said that McConnell’s characterization of the provision is “crazy.” The FEC “is already partisan,” Ravel said in an interview with the Investigative Reporting Workshop.
Watchdog groups monitor the activities of super PACs, groups that are not legally permitted to directly coordinate with campaigns and candidates. But super PAC staffers have obvious personal and professional connections to candidates, said Stuart McPhail, senior litigation counsel at the nonprofit Citizens for Responsibility and Ethics in Washington.
“It’s pretty laughable,” McPhail said in a recent interview. “‘Independent’ groups that are set up by campaign staffers, or [by someone] the candidate worked for before running for office. It doesn’t pass the laugh test.”
Craig Holman, a government affairs lobbyist for the nonprofit Public Citizen, agrees.
“The extent of coordination is more than obvious when you look at the fact that almost half of all major super PACs support only one candidate — the candidate whose staff set up the super PAC,” Holman wrote in an email.
Noti said the FEC had never found a super PAC to have coordinated with a campaign, which he said “is a tremendous scandal, and it’s done real damage to our campaign system.”
Reform groups say that “dark money” is increasing dramatically. McPhail said that as a rule, groups that fight donor disclosure are likely doing so to conceal some form of wrongdoing. He said former commissioner Lee E. Goodman, a Republican who opposes campaign finance regulation, used to say: “90% of campaign funds are transparent, so what’s the big deal?”
But McPhail said “100% of the corruption is happening with the 10% that are not. The reason people are hiding it is because they’re up to no good.”
The argument that the FEC was intended to fail has been promoted by both opponents and supporters of reform. A 2002 report by the nonprofit Democracy 21, which seeks to reform the FEC, reached the conclusion: “To a large degree, Congress designed the FEC to fail as an enforcement agency.”
Then-commissioner Goodman framed deadlocked votes as a positive, telling The New York Times in 2015 that “Congress set this place up to gridlock. … This agency is functioning as Congress intended.”
Former Republican commissioner Trevor Potter, founder of the Campaign Legal Center, disputes the argument that the FEC was intended to be dysfunctional.
“Congress did not design the FEC to fail,” Potter wrote in a 2020 article.
In a 2016 interview with the Investigative Reporting Workshop, Democratic commissioner Weintraub said the FEC “wasn’t set up to fail, but was set up to compromise.”
“There’s no way to get anything done unless people are willing to work hard at finding some common ground,” Weintraub said.
She said that the appointments of Republicans Donald F. McGahn, Caroline C. Hunter and Matthew S. Petersen in 2008 marked a change on the panel. Led by McGahn, the three Republicans began to vote as a bloc to dismiss most major cases.
“The inspiration of this new group of Republican commissioners was to say: ‘Our not doing anything is perfectly fine with us. You can agree with us or we can split. Either way, we win.’”