Federal Election Commission
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Federal Election Commission

Federal Election Commission
Seal of the United States Federal Election Commission.svg
Agency overview
FormedOctober 15, 1974; 46 years ago (1974-10-15)
JurisdictionFederal government of the United States
StatusIndependent regulatory agency
HeadquartersWashington, DC, US
Employees339 (2006)[needs update]
Annual budget$79,100,000 USD (FY 2017)[1]
Agency executives
Key document
Websitewww.fec.gov Edit this at Wikidata

The Federal Election Commission (FEC) is an independent regulatory agency of the United States whose purpose is to enforce campaign finance law in United States 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."

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 being not 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 2021 is Shana M. Broussard, who was elected on December 22, 2020, succeeding James E. Trainor III.[2]

Official duties

Federal Election Commission building, in Washington, D.C.

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][18] Critics have argued that the even number of commissioners and the supermajority requirement was a "set up for deadlock and political shenanigans,"[19] especially in an age of polarization.[7]

Between 1996 and 2006, the FEC tied in only 2.4% of Matters Under Review (MURs).[20] In 2008 and 2009, such deadlocks spiked to 13% and to 24.4% in 2014.[21][22] By 2016, commissioners deadlocked on more than 30% of substantive votes and consequently enforcement intensity decreased significantly.[23][7]

Because of the quorum requirement, and the failure of President Trump in nominating replacement commissioners, the FEC was unable to function from late August 2019 to December 2020, with an exception of May to July 2020.

Criticism

Campaign finance

Critics of the FEC, including many former commissioners[24] 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.[25] 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.

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 amount to an infringement on the First Amendment right to free speech.[26]

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.[27][28]

Deadlocks

Critics of the commission also argue that the membership structure regularly causes deadlocks on 3-3 votes,[29] but others argue that deadlocks are actually quite rare,[30] and typically based on principle rather than partisanship.[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 dropped an inquiry into whether the payment to Stormy Daniels by Donald Trump violated campaign financial law during the 2016 election. The FEC split 2-2 between Democrats and Republicans on taking 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, because the FEC was equally divided 3-3 on party lines, it could not pursue further investigation into Donald Trump.[35]

Commissioners

Current

Name Position Party Appointed by Sworn in Term expires[36]
Shana M. Broussard Chair Democratic Donald Trump December 15, 2020 April 30, 2023
Allen Dickerson Vice Chair Republican December 17, 2020 April 30, 2025
Ellen L. Weintraub Commissioner 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.
Steven T. Walther Commissioner Independent June 24, 2008 April 30, 2009
Term expired--serving until replaced. A replacement's term would expire April 30, 2027.
James E. Trainor III Commissioner Republican Donald Trump May 19, 2020 April 30, 2023
Sean J. Cooksey Commissioner Republican December 14, 2020 April 30, 2021
Term expired--serving until replaced. A replacement's term would expire April 30, 2027.

Vacancies and pending nominations

Former commissioner Vacancy reason Date of vacancy Nominee Date of nomination
Ellen L. Weintraub Term expired April 30, 2007 - -
Steven T. Walther April 30, 2009 - -
Sean J. Cooksey April 30, 2021 - -

Former commissioners and chairmen[37]

See also

Case law

References

  1. ^ "Federal Election Commission: Agency Financial Report, Fiscal Year 2017" (PDF) (Government agency's financial report). November 15, 2017: 5, 67. Retrieved 2018. Cite journal requires |journal= (help)Public domain This article incorporates public domain material from this U.S government document.
  2. ^ a b c "Shana M. Broussard elected Chair, Allen Dickerson elected Vice Chair for 2021". Retrieved 2020.
  3. ^ "52 U.S. Code § 30106 - Federal Election Commission". LII / Legal Information Institute. Retrieved 2017.
  4. ^ [https://www.latimes.com/politics/story/2020-08-05/federal-election-commission-camapign-finance-enforcement The federal agency that enforces campaign finance laws can't even meet. Why? LA Times
  5. ^ FEC losing quorum again after Caroline Hunter resigns Politico
  6. ^ Senate confirms appointee to Federal Election Commission, restoring panel's voting quorum
  7. ^ a b c d e f g h i j k l 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. doi:10.1089/elj.2019.0560. ISSN 1533-1296.
  9. ^ "About". Federal Election Commission. Retrieved 2017.
  10. ^ a b Levinthal, Dave (August 26, 2019). "Federal Election Commission to Effectively Shut Down. Now What?". The Center for Public Integrity. Retrieved 2020.
  11. ^ "Leadership and structure". FEC.gov. Retrieved 2020.
  12. ^ "Six Nominations and One Withdrawal Sent to the Senate Today". whitehouse.gov. Retrieved 2020 – via National Archives.
  13. ^ "Federal Election Commission Regains Powers With New Member". publicintegrity.org. May 19, 2020.
  14. ^ "June 18, 2020 open meeting". FEC.gov. Retrieved 2020.
  15. ^ Lippman, Daniel (June 26, 2020). "FEC losing quorum again after Caroline Hunter resigns". POLITICO. Retrieved 2020.
  16. ^ Senate confirms three to FEC, restoring a full slate
  17. ^ "Ellen L. Weintraub". Federal Election Commission. Retrieved 2020.
  18. ^ 52 U.S.C. §§ 30106, 30107.
  19. ^ Boatright, Robert G. The Deregulatory Moment?: A Comparative Perspective on Changing Campaign Finance Laws. University of Michigan Press 62 (2015).
  20. ^ Michael M. Franz, The Devil We Know? Evaluating the FEC as Enforcer, 8 ELECTION L.J. 167, 176 (2009).
  21. ^ 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).
  22. ^ R. SAM GARRETT, CONG. RES. SERV., NO. R 44319, THE FEDERAL ELECTION COMMISSION: ENFORCEMENT PROCESS AND SELECTED ISSUES FOR CONGRESS 10 (2015).
  23. ^ 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].
  24. ^ Note, Eliminating the FEC: The Best Hope for Campaign Finance Regulation? 131 Harv. L. Rev. 1421 (2018).
  25. ^ See, e.g., Editorial, The Feckless F.E.C., Rebuked, N.Y. TIMES (Sept. 23, 2016), https://nyti.ms/2pxe862 [https://nyti.ms/2pxe862]{{dead link|date=February 2021|bot=medic}}{{cbignore|bot=medic}} ("[M]ost campaign professionals treat the F.E.C. as an impotent joke . . . .")
  26. ^ 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.
  27. ^ Berger, Judson (June 30, 2016). "FEC Democrats tried to punish Fox News over debate changes, files show". Fox News.
  28. ^ Takala, Rudy (September 27, 2016). "Regulators spar over whether unregulated Internet harms minorities". Washington Examiner.
  29. ^ 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
  30. ^ "Opening Statement of Bradley A. Smith, Chairman of the Federal Election Commission, Before the Senate Committee on Rules and Administration, June 4, 2004" (PDF).
  31. ^ Politics (and FEC enforcement) make strange bedfellows: The Soros book matter, Bob Bauer, More Soft Money Hard Law, January 29, 2009 Archived September 15, 2011, at the Wayback Machine
  32. ^ Confessore, Nicholas (August 25, 2014). "Election Panel Enacts Policies by Not Acting". New York Times. Retrieved 2014.
  33. ^ Stormy Daniels: US election officials drop Trump hush money probe
  34. ^ Michael Cohen, Stormy Daniels blast FEC for dropping Trump probe
  35. ^ Karen McDougal: Trump escapes fine in Playboy model payment case
  36. ^ "Commissioners - FEC.gov". FEC.gov.
  37. ^ "All Commissioners".
  38. ^ FEC Elects Officers for 2008 Archived September 16, 2008, at the Wayback Machine, FEC press release, July 10, 2008.
  39. ^ New FEC Commissioners Assume Office Archived September 16, 2008, at the Wayback Machine, FEC press release, July 8, 2008.

Further reading

External links


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