Federal Election Commission

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,[4] 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."

Federal Election Commission
Agency overview
FormedOctober 15, 1974 (1974-10-15)
JurisdictionFederal government of the United States
StatusIndependent regulatory agency
HeadquartersWashington, D.C., USA
Employees339 (2006)
Annual budget$79,100,000 USD (FY 2017)[1]
Agency executives
Key document
Websitewww.fec.gov

The Commission has not functioned since July 2020 due to lack of a quorum. In the absence of a quorum, the commission cannot vote on complaints or give guidance through advisory opinions. As at May 19, 2020, there were 350 outstanding matters on the agency’s enforcement docket and 227 items waiting for action.[5]

Membership

The Commission consists of six members appointed by the President and confirmed by the Senate. Each member is appointed for a six-year term, each ending on April 30, and two seats are subject to appointment every two years.[6] However, members continue to serve after their terms would expire until a replacement is confirmed,[7] but may resign at any time. By law, no more than three commissioners can be members of the same political party, which was intended to ensure that decisions are nonpartisan.[8] A quorum requires four members, and at least four votes are required for any official Commission action, and the chairperson does not have a casting vote.

The Commission has not had six members since 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 April 30, 2023,[9] to enable replacement for Lee Goodman (Republican), who resigned in February 2018, creating a second vacancy. When Matthew Petersen resigned on August 31, 2019, the Commission had only three members, and was unable to conduct most of its regulatory and decision-making functions due to lack of a quorum.[7]

Trainor was confirmed by the Senate on May 19, 2020, restoring the Commission's quorum of four.[10] One meeting was held online, due to the coronavirus pandemic, on June 18, 2020.[11] On June 25, however, Caroline Hunter (Republican) resigned, effective July 3, with the result that the Commission once again lacked a quorum.[12] On June 26, Trump indicated his intention to nominate Allen Dickerson (Republican) a new member of FEC.[13][14] As at August 1, 2020, no nominations have been submitted to the Senate.

The Chair of the Commission rotates among the members each year, with no member serving as chairperson more than once during a six-year term. However, a member may serve as chairperson more than once if they serve beyond the six-year mark and no successor is appointed; for example, Ellen L. Weintraub was chairperson in 2003, 2013 and 2019.[15] The chairperson for 2020 is James Trainor.

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

The commission's role is limited to the administration of 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. Until 2014, the committee 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 by 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 these 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.

Criticism

Campaign finance

Critics of the FEC, including campaign finance reform supporters such as Common Cause and Democracy 21, have complained that it is a classic example of regulatory capture where it serves the interests of the ones it was intended to regulate. 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, 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.[16]

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.[17][18]

Deadlocks

Critics of the commission also argue that the membership structure regularly causes deadlocks on 3-3 votes,[19] but others argue that deadlocks are actually quite rare,[20] and typically based on principle rather than partisanship.[21] 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.[22]

Commissioners

Current
Name Position Party Appointed by Sworn in Term expires[23]
Steven T. Walther Vice ChairmanIndependent George W. BushJune 24, 2008April 30, 2009

Term expired—serving until replaced

Ellen L. Weintraub CommissionerDemocraticDecember 9, 2002
by recess appointment		April 30, 2007

Term expired—serving until replaced

James E. Trainor III ChairRepublicanDonald TrumpMay 19, 2020April 30, 2023
vacant Commissioner–––

–

vacant Commissioner – – – –
vacant Commissioner – – – –

Former
  • 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 L. 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 31, 2007. (by recess appointment on January 4, 2006)
  • Hans A. von Spakovsky – January 2006 – December 31, 2007. (by recess appointment on January 4, 2006)
  • Cynthia L. Bauerly – June 2008 – confirmed June 24, 2008[24] for a term expiring on April 30, 2011[25] Resigned effective February 1, 2013.
  • Donald F. McGahn II – June 2008 – September 2013.
  • Lee E. Goodman - October 2013 - February 2018.
  • Ann Ravel – October 2013 – March 2017.
  • Matthew S. Petersen – June 2008 – August 2019.
  • Caroline C. Hunter - June 2008 – July 2020.

See also

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 2017" (pdf) (Government agency's financial report). November 15, 2017: 5, 67. Retrieved November 12, 2018. Cite journal requires |journal= (help) This article incorporates public domain material from this U.S government document.
  2. "James E. Trainer III". Federal Election Commission. Retrieved January 9, 2020.
  3. "Steven T. Walther". Federal Election Commission. Retrieved January 9, 2020.
  4. "52 U.S. Code § 30106 - Federal Election Commission". LII / Legal Information Institute. Retrieved June 3, 2017.
  5. Senate confirms appointee to Federal Election Commission, restoring panel’s voting quorum
  6. "About". Federal Election Commission. Retrieved June 3, 2017.
  7. Levinthal, Dave (August 26, 2019). "Federal Election Commission to Effectively Shut Down. Now What?". The Center for Public Integrity. Retrieved January 24, 2020.
  8. "Leadership and structure". FEC.gov. Retrieved July 11, 2020.
  9. "Six Nominations and One Withdrawal Sent to the Senate Today". The White House. Retrieved May 19, 2020.
  10. "Federal Election Commission Regains Powers With New Member". publicintegrity.org. May 19, 2020.
  11. "June 18, 2020 open meeting". FEC.gov. Retrieved June 26, 2020.
  12. Lippman, Daniel (June 26, 2020). "FEC losing quorum again after Caroline Hunter resigns". POLITICO. Retrieved June 26, 2020.
  13. Trump Nominates New Federal Election Committee Commissioner
  14. Barr, Luke (June 27, 2020). "FEC commissioner resigns from post". ABC13 Houston. Retrieved June 30, 2020.
  15. "Ellen L. Weintraub". Federal Election Commission. Retrieved January 9, 2020.
  16. 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.
  17. Berger, Judson (June 30, 2016). "FEC Democrats tried to punish Fox News over debate changes, files show". Fox News.
  18. Takala, Rudy (September 27, 2016). "Regulators spar over whether unregulated Internet harms minorities". Washington Examiner.
  19. 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
  20. "Opening Statement of Bradley A. Smith, Chairman of the Federal Election Commission, Before the Senate Committee on Rules and Administration, June 4, 2004" (PDF).
  21. 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
  22. Confessore, Nicholas (August 25, 2014). "Election Panel Enacts Policies by Not Acting". New York Times. Retrieved August 26, 2014.
  23. "Commissioners - FEC.gov". FEC.gov.
  24. FEC Elects Officers for 2008 Archived September 16, 2008, at the Wayback Machine, FEC press release, July 10, 2008.
  25. New FEC Commissioners Assume Office Archived September 16, 2008, at the Wayback Machine, FEC press release, July 8, 2008.

Further reading
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