During the 2016 campaign, Trump described the political system as “broken.” He now has a chance to show whether he has any interest in fixing it.
By March 1, the agency charged with enforcing federal campaign finance law, the Federal Election Commission (FEC), will be down to five members, all of whom will be serving on expired terms. Commissioner Ann Ravel announced Sunday that she’ll be leaving her post at the end of this month.
FEC commissioners are nominated the president, and confirmed by the Senate. With a Republican Senate, Trump may soon be able to put his mark on the agency tasked with regulating the super PACs he once called a “scam” and enforcing the law to address the “bought and paid for politicians” and big donors that Trump attacked on the campaign trail.
Put simply, if Trump really wants to “drain the swamp,” appointing FEC Commissioners who will enforce the law is a good way to start.
Or, Trump could take steps to expand the influence of wealthy donors over politicians by undermining enforcement at the FEC.
“Virtually No Enforcement of the Campaign Finance Laws”
No more than three FEC commissioners can be members of the same party; the six-member Commission currently consists of three Republicans, two Democrats (including Ravel), and one independent, who generally votes with the Democrats.
Because the agency requires a four-vote majority to take any substantive action, in recent years, deadlock among FEC commissioners has become routine—a pattern that grew with the tenure of Don McGahn, who is now White House Counsel.
For example, even though the source of all campaign spending is supposed to be disclosed, dark money has flourished, because the FEC has deadlocked on efforts both to write new disclosure rules and to require dark money groups to register as political committees and reveal their donors. And, even though super PACs are supposed to operate independently of candidates, the FEC has allowed these supposedly “independent” groups to edge ever closer to the campaigns they are supporting.
It is not that Republican commissioners only want to enforce the law against Democrats, and Democrats only against Republicans; instead, the Republican commissioners now often refuse to enforce the law at all.
As a whole, Republican voters overwhelmingly support reasonable limits on money in elections. Trump himself won the Republican nomination (and eventually the presidency) on a “drain the swamp” platform.
Yet, for at least the past decade, the Republican commissioners have not been selected because they are reflective of the party as a whole, but instead because they are ideologically opposed to campaign finance limits. This is largely because Senate Republicans recommend the Republican commissioners, and Majority Leader Mitch McConnell is himself an avowed opponent of campaign finance laws.
The deadlock in recent years not only means that political operatives who’ve already violated the law are not penalized, but sends a signal that others can push the legal envelope with little fear of recourse.
As one Republican campaign finance attorney told the Washington Post last year, “we are in an environment in which there has been virtually no enforcement of the campaign finance laws.”
Trump Can Fix This – Will He?
So what can Trump do about this? A few options:
Option one: maintain the status quo. Longstanding practice is that Senate leaders suggest a nominee from their party, and the president nominates that person. This means that Trump would typically rely upon Senate Democrats to suggest the replacement for Ravel, a Democrat. The effect would likely be a continuation of the current deadlock – but it wouldn’t make things worse.
Option two: appoint a deregulatory majority. Trump could also buck the tradition of offering Democratic Senate leaders a say in replacing a Democratic commissioner, and select his own replacement based on the advice of Republican Senate Majority Leader McConnell or White House Counsel McGahn – both committed opponents of campaign finance laws. Trump could nominate a Democrat who opposes campaign finance reform, or replace Ravel with a Libertarian or an anti-regulation Independent, ensuring a four-vote majority for the FEC doing nothing. No more than three FEC commissioners can be members of the same party, but there is no requirement that it be evenly balanced between Democrats and Republicans.
In fact, Trump can go even further, since all of the FEC’s remaining commissioners are serving on expired terms. This means Trump is in a position to clear the deck and appoint an entirely new slate of commissioners—and he could nominate six new commissioners who share the anti-reform approach of his White House Counsel.
Whether by a one vote majority or by appointing a new commission, a deregulatory agency could largely dismantle longstanding campaign finance laws, by narrowly construing every law, rolling back regulations and sending a signal that campaign finance law can be readily ignored.
Quietly undermining the enforcement of campaign finance law can be almost as effective as repealing the laws themselves--yet with less risk of public backlash.
Option three: make the FEC work!
Trump also has an option that would show he was serious when he talked about our corrupt campaign finance system. He could nominate six new commissioners, both Republican and Democrat, who are all committed to the mission of the agency. Doing so would help limit the power of special interests that Trump railed against on the campaign trail. An effective FEC could crack down on dark money, limit candidate-specific super PACs, and effectively limit political spending by contractors and foreign corporations.
Even if we accept Trump’s assertion that he is too wealthy to be influenced by donors, there are 535 other federal officials who may not be so lucky: the FEC not only regulates the presidential election, but races for all 435 Members of the House and 100 Senators. And although the press and public pay the most attention to big checks in the presidential election, money matters more in down-ballot races.
In her resignation letter, Commissioner Ravel urged President Trump to nominate Commissioners “who will carry out the mandates of the law.” And, she stressed:
"Our campaign finance system should promote citizen engagement and participation in the political process instead of disenchantment with democracy. People from all walks of life should be able to run for office without having to seek out wealthy donors, or be wealthy donors themselves, to win."