Federal Election Commission

Federal Election Commission

Agency overview
Formed	October 15, 1974; 50 years ago (1974-10-15)
Jurisdiction	Federal government of the United States
Status	Independent regulatory agency
Headquarters	1050 First St NE Washington, D.C., U.S.
Employees	509 (2018)^[needs update]
Annual budget	$74.5 million USD (FY 2022)[1]
Agency executives	Sean J. Cooksey, Chairman[2] Ellen Weintraub, Vice Chair[2]
Key document	Federal Election Campaign Act Amendments of 1974 (Pub. L. 93–443 88 Stat. 1263)
Website	www.fec.gov

The Federal Election Commission (FEC) is an independent agency of the United States government that enforces U.S. campaign finance laws and oversees U.S. federal elections. Created in 1974 through amendments to the Federal Election Campaign Act,^[3] the commission describes its duties as "to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections." It is led by six commissioners who are nominated by the president and confirmed by the Senate.

The commission was unable to function from late August 2019 to December 2020, with an exception for the period of May 2020 to July 2020, due to lack of a quorum.^[4][5] In the absence of a quorum, the commission could not vote on complaints or give guidance through advisory opinions. As of May 19, 2020, there were 350 outstanding matters on the agency's enforcement docket and 227 items waiting for action.^[6] In December 2020, three commissioners were appointed to restore a quorum; however, deadlocks arising from the equal number of members from the Republican and Democratic parties with the absence of a tie-breaking vote has resulted in some controversial investigations not being pursued.

History and membership

History

The FEC was established in 1974, in an amendment of the Federal Election Campaign Act (FECA), to enforce and regulate campaign finance law.^[7] Initially, its six members were to be appointed by both houses of Congress and the president, reflecting a strong desire for Congress to retain control.^[7] Two commissioners were to be appointed by the president pro tempore of the Senate and two by the speaker of the House of Representatives, each upon recommendation by the respective majority and minority leaders in that chamber, and the last two appointed by the president.^[7] They were to be confirmed by both Houses of Congress, rather than only by the Senate.^[7]

The appointment process was invalidated in 1976, in Buckley v. Valeo, when the Supreme Court held that the commissioners of the FEC were "Officers of the United States" under the Appointments Clause, and must be nominated by the president and confirmed by the Senate.^[7] Congress then amended the FECA to comply with Buckley and now the six FEC commissioners are nominated by the president and confirmed by the Senate.^[7]

Since 1990, the FEC has grown more polarized, with considerable deadlocks in decision-making.^[8]

Commissioners

The commission consists of six commissioners appointed by the president and confirmed by the Senate. Each commissioner is appointed for a six-year term, but each ending on April 30. Two commissioners are appointed every two years.^[9] However, commissioners continue to serve after their terms would expire until a replacement is confirmed,^[10] but may resign at any time. By law, no more than three commissioners can be members of the same political party.^[11]

The commission had fewer than six commissioners for several years after the resignation of Ann Ravel (Democratic) in March 2017. President Donald Trump nominated James E. Trainor III (Republican) on September 14, 2017, for a term expiring on April 30, 2023,^[12] to enable replacement for Lee Goodman (Republican), who resigned in February 2018, creating a second vacancy. When Matthew Petersen (Republican) resigned on August 31, 2019, the commission had only three commissioners, and was unable to conduct most of its regulatory and decision-making functions due to lack of a quorum.^[10]

Trainor was confirmed by the Senate on May 19, 2020, restoring the commission's quorum of four.^[13] One meeting was held online, due to the coronavirus pandemic, on June 18, 2020.^[14] On June 25, however, Caroline Hunter (Republican) resigned, effective July 3, with the result that the commission once again lacked a quorum.^[15] On December 9, three new members were confirmed by the Senate.^[16]

The chair of the commission rotates among the commissioners each year, with no commissioner serving as chair more than once during a six-year term. However, a commissioner may serve as chair more than once if they serve beyond the six-year mark and no successor is appointed; for example, Ellen L. Weintraub (Democratic) was chair in 2003, 2013 and 2019.^[17] The chair of the commission in 2022 is Allen Dickerson, who was elected in December 2021, succeeding Shana Broussard.^[18]

Official duties

Duties

The FEC administers federal campaign finance laws. It enforces limitations and prohibitions on contributions and expenditures, administers the reporting system for campaign finance disclosure, investigates and prosecutes violations (investigations are typically initiated by complaints from other candidates, parties, watchdog groups, and the public), audits a limited number of campaigns and organizations for compliance, and administers the presidential public funding programs for presidential candidates.^[7]

Until 2014, the FEC was also responsible for regulating the nomination of conventions and defends the statute in challenges to federal election laws and regulations.

The FEC also publishes reports, filed in the Senate, House of Representatives and presidential campaigns, that list how much each campaign has raised and spent, and a list of all donors over $200, along with each donor's home address, employer and job title. This database also goes back to 1980. Private organizations are legally prohibited from using this data to solicit new individual donors (and the FEC authorizes campaigns to include a limited number of "dummy" names as a measure to prevent this), but may use this information to solicit political action committees. The FEC also maintains an active program of public education, directed primarily to explaining the law to the candidates, their campaigns, political parties and other political committees that it regulates.

Procedures and deadlock

The most significant powers of the FEC require an affirmative vote. These powers include the ability to conduct investigations, report misconduct to law enforcement, pursue settlements with candidates, and to bring a civil action in court to enforce campaign finance regulations.^[7] The FEC can also publish advisory opinions on campaign finance issues and issue campaign finance regulations.^[7]

Under the statute, there is an even number of commissioners with no more than three commissioners being members of the same political party. However, there is no tie-breaking process, such as by the chair. In addition, there is a quorum requirement of four commissioners. This results in four of the six commissioners being required for a FEC decision, which in turn means that on controversial issues bipartisan support is required for a decision.^[7][19] Critics have argued that the even number of commissioners and the supermajority requirement was a "set up for deadlock and political shenanigans,"^[20] especially in an age of polarization.^[7]

Between 1996 and 2006, the FEC tied in only 2.4% of Matters Under Review (MURs).^[21] In 2008 and 2009, such deadlocks spiked to 13% and to 24.4% in 2014.^[22][23] By 2016, commissioners deadlocked on more than 30% of substantive votes and consequently enforcement intensity decreased significantly.^[24][7]

Criticism

Campaign finance

Critics of the FEC, including many former commissioners^[25] and campaign finance reform supporters, have harshly complained of the FEC's impotence, and accused it of succumbing to regulatory capture where it serves the interests of the ones it was intended to regulate.^[26] The FEC's bipartisan structure, which was established by Congress, renders the agency "toothless." Critics also claim that most FEC penalties for violating election law come well after the actual election in which they were committed. Additionally, some critics claim that the commissioners tend to act as an arm of the "regulated community" of parties, interest groups, and politicians when issuing rulings and writing regulations. Others point out, however, that the commissioners rarely divide evenly along partisan lines, and that the response time problem may be endemic to the enforcement procedures established by Congress. To complete steps necessary to resolve a complaint – including time for defendants to respond to the complaint, time to investigate and engage in legal analysis, and finally, where warranted, prosecution – necessarily takes far longer than the comparatively brief period of a political campaign.

While campaigning in the 2018 United States House of Representatives elections in New York, Democratic primary candidate Liuba Grechen Shirley used campaign funds to pay a caregiver for her two young children. The FEC ruled that federal candidates can use campaign funds to pay for childcare costs that result from time spent running for office. Grechen Shirley became the first woman in history to receive approval to spend campaign funds on childcare.^[27]

First Amendment issues

Critics including former FEC chairman Bradley Smith and Stephen M. Hoersting, former executive director of the Center for Competitive Politics, criticize the FEC for pursuing overly aggressive enforcement theories that they believe amount to an infringement on the First Amendment right to free speech.^[28]

Division over the issue became especially prominent during the last several years of the Obama administration. Commissioners deadlocked on several votes over whether to regulate Twitter, Facebook, and other online mediums for political speech, as well as a vote to punish Fox News for the selection criteria it used in a presidential debate.^[29][30]

Deadlocks

Critics of the commission also argue that the membership structure regularly causes deadlocks on 3-3 votes.^[31] Since 2008, 3-3 votes have become more common at the FEC. From 2008 to August 2014, the FEC has had over 200 tie votes, accounting for approximately 14 percent of all votes in enforcement matters.^[32]

On May 6, 2021, the FEC closed an inquiry into whether the payment to Stormy Daniels by Donald Trump violated campaign financial law during the 2016 election. The FEC voted 2-2, between Democrats and Republicans, against a motion to take further action.^[33] Republican Vice Chairman Allen Dickerson recused himself, while independent Commissioner Steven Walther did not vote.^[34]

Similarly, in June 2021, the FEC found that National Enquirer violated US election laws and $150,000 paid by AMI to Karen McDougal amounted to an illegal campaign contribution. Publisher AMI agreed to a fine of $187,500. However, the FEC divided 3-3 on party lines on a motion to pursue further investigation into Donald Trump, thus closing the investigation.^[35]

In June 2023, the FEC deadlocked over requests to create guidelines for campaign advertisements which use content generated by artificial intelligence. The vote failed 3-3 with all Republican commissioners voting against the request and all Democratic commissioners voting in favor, with Republican commissioner Allen Dickerson arguing that the agency did not have the authority to regulate such advertisements."^[36]

Commissioners

Current

Name	Position	Party	Appointed by	Sworn in	Term expires[37]
Sean J. Cooksey	Chairman	Republican	Donald Trump	December 14, 2020	April 30, 2021 Term expired—serving until replaced. A replacement's term would expire April 30, 2027.
Ellen Weintraub	Vice Chair	Democratic	George W. Bush	December 9, 2002 by recess appointment	April 30, 2007 Term expired—serving until replaced. A replacement's term would expire April 30, 2025.
James E. Trainor III	Commissioner	Republican	Donald Trump	June 5, 2020	April 30, 2023 Term expired—serving until replaced. A replacement's term would expire April 30, 2029.
Shana M. Broussard	Commissioner	Democratic		December 15, 2020	April 30, 2023 Term expired—serving until replaced. A replacement's term would expire April 30, 2029.
Allen Dickerson	Commissioner	Republican		December 17, 2020	April 30, 2025
Dara Lindenbaum	Commissioner	Democratic	Joe Biden	August 2, 2022	April 30, 2027

Former commissioners and chairmen

Source:^[38]

• Joan D. Aikens – April 1975 – September 1998 (reappointed May 1976, December 1981, August 1983 and October 1989).
• Thomas B. Curtis – April 1975 – May 1976.
• Thomas E. Harris – April 1975 – October 1986 (reappointed May 1976 and June 1979).
• Neil O. Staebler – April 1975 – October 1978 (reappointed May 1976).
• Vernon W. Thomson – April 1975 – June 1979; January 1981 – December 1981 (reappointed May 1976).
• Robert Tiernan – April 1975 – December 1981 (reappointed May 1976).
• William L. Springer – May 1976 – February 1979.
• John Warren McGarry – October 1978 – August 1998 (reappointed July 1983 and October 1989).
• Max Friedersdorf – March 1979 – December 1980.
• Frank P. Reiche – July 1979 – August 1985.
• Lee Ann Elliott – December 1981 – June 2000 (reappointed July 1987 and July 1994).
• Danny L. McDonald – December 1981 – January 2006 (reappointed in July 1987, July 1994 and July 2000).
• Thomas J. Josefiak – August 1985 – December 1991.
• Scott E. Thomas – October 1986 – January 2006 (reappointed in November 1991 and July 1998).
• Trevor Potter – November 1991 – October 1995.
• Darryl R. Wold – July 1998 – April 2002.
• Karl J. Sandstrom – July 1998 – December 2002.
• David M. Mason – July 1998 – July 2008.
• Bradley A. Smith – May 2000 – August 2005.
• Michael E. Toner – March 2002 – March 2007. (by recess appointment on March 29, 2002, confirmed to full term 2003)
• Robert D. Lenhard – January 2006 – December 2007. (by recess appointment on January 4, 2006)
• Hans A. von Spakovsky – January 2006 – December 2007. (by recess appointment on January 4, 2006)
• Steven T. Walther – January 2006 – December 2007 (by recess appointment on January 4, 2006), June 2008 — August 2022. (later confirmed to full term)
• Cynthia L. Bauerly – June 2008 – February 2013.
• Matthew S. Petersen – June 2008 – August 2019.
• Caroline C. Hunter – June 2008 – July 2020.
• Don McGahn – July 2008 – September 2013.
• Lee E. Goodman – October 2013 – February 2018.
• Ann Ravel – October 2013 – March 2017.

See also

• Bipartisan Campaign Reform Act
• Campaign finance in the United States
• Dark Money (film)
• Election Assistance Commission
• Elections in the United States
• Federal Election Campaign Act
• International Foundation for Electoral Systems
• Title 11 of the Code of Federal Regulations
• Shadow campaigns in the United States

Case law

• Buckley v. Valeo, 424 U.S. 1 (1976)
• Federal Election Commission v. Akins (1998), authorizing "any party aggrieved by an order of the Commission" to file a suit
• McConnell v. Federal Election Commission (2003)
• Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), holding that issue ads may not be banned before elections
• Davis v. Federal Election Commission (2008)
• Citizens United v. Federal Election Commission (2010)
• McCutcheon v. Federal Election Commission (2014)

References

1. "Federal Election Commission: Agency Financial Report, Fiscal Year 2022" (PDF) (Government agency's financial report). November 15, 2022. pp. 55, 56. Retrieved September 12, 2023. This article incorporates public domain material from this U.S government document.
2. "Sean J. Cooksey elected Chairman, Ellen L. Weintraub elected Vice Chair for 2024". Retrieved January 8, 2024.
3. "52 U.S. Code § 30106 - Federal Election Commission". LII / Legal Information Institute. Archived from the original on November 24, 2020. Retrieved June 3, 2017.
4. "The federal agency that enforces campaign finance laws can't even meet. Why?". Los Angeles Times. August 5, 2020. Archived from the original on November 24, 2020. Retrieved March 15, 2023.
5. FEC losing quorum again after Caroline Hunter resigns Archived November 24, 2020, at the Wayback Machine Politico
6. "Senate confirms appointee to Federal Election Commission, restoring panel's voting quorum". Archived from the original on November 24, 2020. Retrieved August 3, 2020.
7. Padilla-Babilonia, Alvin. "Reforming the Federal Election Commission: Storable Voting." Wyo. L. Rev. 20 (2020): 287.
8. Franz, Michael M. (September 28, 2020). "Federal Election Commission Divided: Measuring Conflict in Commission Votes Since 1990". Election Law Journal: Rules, Politics, and Policy. 20 (2): 224–241. doi:10.1089/elj.2019.0560. ISSN 1533-1296.
9. "About". Federal Election Commission. Archived from the original on April 18, 2021. Retrieved June 3, 2017.
10. Levinthal, Dave (August 26, 2019). "Federal Election Commission to Effectively Shut Down. Now What?". The Center for Public Integrity. Archived from the original on January 24, 2020. Retrieved January 24, 2020.
11. "Leadership and structure". FEC.gov. Archived from the original on January 3, 2020. Retrieved July 11, 2020.
12. "Six Nominations and One Withdrawal Sent to the Senate Today". whitehouse.gov. Archived from the original on January 20, 2021. Retrieved May 19, 2020 – via National Archives.
13. "Federal Election Commission Regains Powers With New Member". publicintegrity.org. May 19, 2020. Archived from the original on May 26, 2020. Retrieved May 19, 2020.
14. "June 18, 2020 open meeting". FEC.gov. Archived from the original on June 26, 2020. Retrieved June 26, 2020.
15. Lippman, Daniel (June 26, 2020). "FEC losing quorum again after Caroline Hunter resigns". POLITICO. Archived from the original on November 24, 2020. Retrieved June 26, 2020.
16. "Senate confirms three to FEC, restoring a full slate". Archived from the original on February 12, 2021. Retrieved February 10, 2021.
17. "Ellen L. Weintraub". Federal Election Commission. Archived from the original on February 8, 2020. Retrieved January 9, 2020.
18. "Dara Lindenbaum elected Chair, Sean J. Cooksey elected Vice Chair for 2023". Archived from the original on January 3, 2023. Retrieved January 3, 2023.
19. 52 U.S.C. §§ 30106, 30107.
20. Boatright, Robert G. The Deregulatory Moment?: A Comparative Perspective on Changing Campaign Finance Laws. University of Michigan Press 62 (2015).
21. Michael M. Franz, The Devil We Know? Evaluating the FEC as Enforcer, 8 ELECTION L.J. 167, 176 (2009).
22. R. SAM GARRETT, CONG. RES. SERV., NO. R 40779, DEADLOCKED VOTES AMONG MEMBERS OF THE FEDERAL ELECTION COMMISSION (FEC): OVERVIEW AND POTENTIAL CONSIDERATIONS FOR CONGRESS 5, 9-10, 12 (2009).
23. R. SAM GARRETT, CONG. RES. SERV., NO. R 44319, THE FEDERAL ELECTION COMMISSION: ENFORCEMENT PROCESS AND SELECTED ISSUES FOR CONGRESS 10 (2015).
24. Eric Lichtblau, Democratic Member to Quit Election Commission, Setting Up Political Fight, N.Y. TIMES (Feb. 19, 2017), www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html [https://perma.cc/2VMR-5A8C].
25. Note, Eliminating the FEC: The Best Hope for Campaign Finance Regulation? 131 Harv. L. Rev. 1421 (2018).
26. See, e.g., Editorial, The Feckless F.E.C., Rebuked, N.Y. TIMES (Sept. 23, 2016), [1](subscription required) "Archived copy". The New York Times. Archived from the original on January 4, 2024. Retrieved January 4, 2024. ("[M]ost campaign professionals treat the F.E.C. as an impotent joke . . . .")
27. Carter, Christine Michel. "Electing A Mother As VP? Vote Mama Resoundingly Says Yes". Forbes. Archived from the original on June 21, 2023. Retrieved June 21, 2023.
28. Bradley A. Smith; Stephen M. Hoersting (2002). "A Toothless Anaconda: Innovation, Impotence, and Overenforcement at the Federal Election Commission". Election Law Journal. 1 (2): 145–171. doi:10.1089/153312902753610002.
29. Berger, Judson (June 30, 2016). "FEC Democrats tried to punish Fox News over debate changes, files show". Fox News. Archived from the original on April 26, 2017. Retrieved April 26, 2017.
30. Takala, Rudy (September 27, 2016). "Regulators spar over whether unregulated Internet harms minorities". Washington Examiner. Archived from the original on December 22, 2017. Retrieved April 26, 2017.
31. CREW Sues the Federal Election Commission over Case Dismissals, OMB Watch, August 17, 2010 Archived February 21, 2012, at the Library of Congress Web Archives
32. Confessore, Nicholas (August 25, 2014). "Election Panel Enacts Policies by Not Acting". The New York Times. Archived from the original on November 12, 2020. Retrieved August 26, 2014.
33. "Stormy Daniels: US election officials drop Trump hush money probe". Archived from the original on May 8, 2021. Retrieved May 8, 2021.
34. "Michael Cohen, Stormy Daniels blast FEC for dropping Trump probe". Archived from the original on May 8, 2021. Retrieved May 8, 2021.
35. "Karen McDougal: Trump escapes fine in Playboy model payment case". Archived from the original on June 5, 2021. Retrieved June 2, 2021.
36. How an FEC deadlock is deterring a push to regulate AI in campaigns Archived September 26, 2023, at the Wayback Machine.
37. "Commissioners - FEC.gov". FEC.gov. Archived from the original on March 18, 2021. Retrieved June 26, 2018.
38. "All Commissioners". Archived from the original on November 27, 2020. Retrieved December 1, 2020.

Further reading

• Takala, Rudy (January 4, 2016). "Commissioner: FEC power grabs are the real 'dysfunction'". Washington Examiner.
• Christopher Rowland (July 7, 2013). "America's campaign-finance watchdog is rendered nearly toothless by its own appointed commissioners". The Boston Globe.
• "Will the Federal Election Commission Ever Work Again?". BusinessWeek. May 2, 2013. Archived from the original on May 10, 2013.

External links

• Official website
• Federal Election Commission in the Federal Register