WASHINGTON — When Matthew Petersen left his role as a commissioner in the Federal Election Commission at the end of August, the campaign finance oversight agency no longer had a quorum four commissioners — leaving it unable to meet.
The Senate Republicans finally appear ready to confirm the Trump administration’s nominee for Peterson’s slot — Trey Trainor. But in the current environment at the FEC, there is no guarantee the three existing commissioners — each having served past the end of their terms — would stay, former Republican FEC Commissioner Lee Goodman said. The commission is supposed to have six members, three Democrats and three Republicans – there have only been three commissioners since August. At least four commissioners — two-thirds of the six commissioners legally allowed to serve — are needed for a quorum to conduct oversight on the nation’s campaign finance laws.
“You oughta be asking, are any other commissioners considering leaving the commission?” Goodman said. “Because they’ve all been there a very long time, and there’s no guarantee that any of them would stay much longer.”
To ameliorate this possibility and assemble a lasting quorum, the White House and Senate Majority Leader Mitch McConnell have expressed a willingness to have a slate of six new commissioners – three from each party, according to a source familiar with the politics of commissioner appointments.
However, Senate Minority Leader Schumer has only given the name of one potential Democratic appointee — FEC Executive Assistant Shana Broussard — to fill the only vacancy left of the Democratic commissioners.
Watchdog role stalled
In the wake of the Watergate scandal, Congress enacted the Federal Election Campaign Act of 1974, which created limits on donations to political campaigns.
To enforce the new laws, Congress also established the FEC — composed of three Democrats and three Republicans — to make rulings and uphold the campaign finance laws.
Before the days of stringent campaign finance laws, there was little accountability regarding issues such as foreign contributions, former Democratic Commissioner Ann Ravel said.
“The whole purpose of the FEC was because there was very little disclosure of violations of law and new enforcement of those violations prior,” Ravel said. “There was no agency to enforce the law.”
Though day to day operations in the FEC remain intact, an essential function of the FEC is to deliver decisions on campaign finance laws in federal elections. Because the commission requires four commissioners to conduct business, Petersen’s departure stalled vital decision-making duties of the commission.
Without a quorum, the FEC could not enforce penalties on campaign finance laws and deliver advisory opinions to candidates looking for guidance on campaign finances.
“Many functions of the agency continue uninterrupted in the absence of a quorum on the commission,” Goodman said. “Those penalties actually can’t be imposed unless there is a quorum on the commission… In order to even issue an administrative fine for misreporting data, the commission must vote on that. And without a commission, you can’t.”
Though a Senate confirmation of Trainor would bring a quorum back to the FEC, McConnell and the White House have both expressed interest in clearing the current commissioners and appointing a new slate of six commissioners.
“The White House has been prepared to appoint six new commissioners, if Sen. Schumer would send them the names of three Democrats to take the Democratic seats,” a source familiar with the politics and inner workings of the commission said. “The hold-up is that Sen. Schumer will not send three names to the White House.”
The White House did not respond to requests for comment.
A McConnell spokesman declined to comment on the specifics of the Majority Leader’s agenda for the FEC, but he did offer the overall mission for the Majority Leader.
“The goal has always been to have a full commission,” the spokesman said. “That will take bipartisan cooperation. Discussions continue on how to accomplish the goal.”
Others speculated that the motivation was to lessen the extent to which the FEC takes an oversight role. To Schumer, Trainor’s record on campaign finance shows McConnell’s desire to loosen the rules and weaken the commission, along with the existing campaign finance laws.
Ravel said the talk of cleaning house on the commission comes from a desire to alter the way the FEC administers campaign finance laws.
“What the Republicans in the Senate have wanted is to eliminate all of the present commissioners and just put all new commissioners,” Ravel said. “This was viewed by the Democrats as an effort by the Republicans to pack the commission… (with members) who don’t believe in the central mission of the FEC.”
Besides being able to appoint more lenient commissioners to the FEC, others worry that cleaning house on the commission would force all appointees to learn at the same time. Instead, by adding Trainor and then getting Democrats and Republicans to each nominate one more, the current commissioners would be able to help the newcomers learn the ropes of the federal watchdog.
Daniel Weiner, deputy director of the Brennan Center’s Election Reform Program, expressed concern with appointing six commissioners all at once to the FEC.
“There’s some risk in sweeping in all six people at the same time,” Weiner said. “It would be better to stagger the replacements… There would always be some commissioners with experience, and the new people could get acclimated.”
A quorumless precedent?
Though the body has lacked a quorum, even in the midst of a presidential election year when millions in campaign contributions will be made, some people were concerned about what precedents would be set when the independent commission goes without a functional number of commissioners.
Weiner said that leaving the body quorumless heading into an election year only further deteriorates liberal democratic functions in the government.
“We’re living in a time when many norms are being eroded,” Weiner said. “And I do worry that the FEC not having a quorum would further undermine the norm that we do need these campaign finance laws.”
While the question of precedent remains, it is worth noting that day-to-day operations continue, and candidates still must file their documents to the FEC every quarter.
A quorum will eventually be reached, Goodman said, so there is no reason to avoid providing these documents to the FEC. But if they didn’t, the current commission could not meet to enforce these campaign finance laws.
“People know there will be quorum at some time in the future, and so no one has stopped reporting their campaign finance data to the commission,” Goodman said.
Ravel, though, struck a hopeful tune about the future of the commission, during this election year and without a quorum. This instance may prove to the public that they need this watchdog and these campaign laws, she said.
“The lack of an FEC during the election, I think, is going to…create even more of a desire on the part of the public to have an agency that has an ability to act,” Ravel said.