Even as the Federal Election Commission prepares to grind to a halt on the cusp of the 2020 elections, campaign finance experts say politicians and donors who flout the nation’s political money rules may still suffer consequences.
The hobbled agency, which is supposed to have three Democratic and three Republican commissioners, will be down to just three total commissioners starting next week with the departure of Republican Matthew Petersen on Aug. 31. That means the FEC can’t hold meetings or hearings, let alone take enforcement action against rule-breakers, because it lacks the minimum of four commissioners required for a quorum.
Still, those who advise campaigns and donors, or focus on political money law, say the 2020 campaigns won’t be entirely without legal checks or public relations concerns.
“First of all, clear violations of the law could get the attention of the Justice Department,” said Rick Hasen, professor of law and political science at the University of California, Irvine. “I don’t think it’s quite the Wild West that some people have described.”
The FEC will continue to collect and post online campaign finance records for congressional and presidential campaigns, the agency’s deputy press officer Christian Hilland confirmed in an email. Its staff of 300-some employees will also continue to collect complaints, which a reconstituted commission could take action on in the coming months or years.
Former FEC Chairman Michael Toner, who runs the election law and government ethics practice at the D.C. firm Wiley Rein, said he would not be surprised if the agency is without sufficient commissioners through next year’s elections. The White House has nominated one person, Republican Trey Trainor, to serve on the commission, but the Senate has not taken up his nomination. Nor have congressional Democrats and the White House announced any Democratic nominees.
The president makes nominations to the FEC, and the Senate confirms them. Presidents historically have deferred to the Senate party leadership when it comes to nominations from the other party.
“This could be a very long wait for the FEC to regain a quorum,” Toner said, adding that filling the agency did not seem to be a priority for congressional Democrats, including Senate Minority Leader Charles E. Schumer, or for the Trump administration.
In 2008, the commission lacked a quorum for a number of months.
A senior Senate GOP aide said that despite an apparent lack of movement on the matter, there is an ongoing effort to fill all six FEC commissioner seats. “To do that though, Senator Schumer and Senate Democrats must replace the two longtime Democratic holdovers,” said the aide, referring to FEC Chairwoman Ellen Weintraub, who has been on the panel since 2002, and Steven Walther, who has been on it since 2006.
“A clean slate of members will go a long way toward fixing some of the perceived dysfunction at the Commission,” the aide added in an email.
An aide to Schumer said in an email that “Congress should address this issue quickly because we need a fully functioning FEC.”
‘This is not a legal free zone’
Though it’s up to the Senate to confirm commissioners to the FEC, the House Administration Committee has jurisdiction over campaign finance matters. Rep. Zoe Lofgren, the California Democrat who chairs that panel, said in a statement Tuesday that she planned to probe deeper into the FEC’s dysfunction at an oversight hearing in the coming weeks.
“Even with a working quorum of commissioners, the FEC has failed to fulfill its mission to enforce campaign finance laws, protect the integrity of our democracy, and ensure all campaign spending is transparent,” she said in the statement. “I urge the President and Senate to move forward swiftly with nominees to the Commission who will enforce and administer the law fairly.”
Despite the FEC drama, Toner said campaign finance statutes remain on the books and noted that campaign finance violations have a statute of limitations of five years.
“This is not a legal free zone,” Toner said.
Weintraub said in a statement that the country’s “election cop is still on the 2020 campaign beat.” She added: “Yes, the commission’s ability to make decisions regarding past infractions will be delayed until a quorum is restored. But some of the FEC’s most important duties will continue unimpeded. Make no mistake: The FEC will still be able to shine a strong spotlight on the finances of the 2020 campaign.”
Hasen said he didn’t expect the FEC’s inaction would prompt campaigns or donors to engage in flagrant violations, such as corporations making direct donations to federal candidates. But he predicted that some may feel emboldened to adopt riskier practices, such as using old campaign funds to set up nonprofit organizations.
“They might feel a little bit freer,” he said.
Hasen’s biggest concern, he said, is that the commission will not be able to take action on possible foreign interference in the elections, though individual commissioners may issue their own statements.
Campaign finance watchdog Fred Wertheimer, who runs the group Democracy 21, said that even as the Justice Department could pursue criminal violations, the FEC has sole jurisdiction over civil penalties.
Wertheimer noted that Democrats’ sweeping campaign finance and ethics bill known as HR 1, which passed the House but lies dormant in the Senate, included provisions to overhaul the FEC. The agency’s paralysis could boost the argument in favor of such measures, he said.
“Most people believe if they violate the law, they can get in trouble. This is the ultimate double standard,” he said. “As a practical matter, this means that in the middle of a presidential election cycle, there is no agency to enforce the campaign finance laws.”
Meredith McGehee, executive director of the campaign finance overhaul group Issue One, said the FEC’s long-standing dysfunction made it difficult to “set your hair on fire” over the looming vacancies and that the law is the law.
But she added: “Laws are only as good as the enforcement.”