Why the FEC Is Ineffective

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People sit behind a large desk with microphone in front of them and a large logo behind at the Federal Election
Ellen Weintraub (left), Allen Dickerson (right) and other commissioners meet during an open meeting at the Federal Election Commission on July, 14, 2022. Photo by Casey Atkins/Campaign Legal Center

The five authors of this blog are all former FEC employees

To reduce political corruption, we need real transparency about who is spending big money on elections. Voters need to know who is funding election messaging, so they can properly weigh the credibility of that messaging and cast an informed vote. 

The Federal Election Commission (FEC) is the independent government agency charged with ensuring that voters have the information they need about spending in our elections. Its sole responsibility is overseeing the integrity of federal election campaigns.  

Among other duties, the agency administers and enforces federal campaign finance laws that apply to all federal elections, including elections for the U.S. House, Senate and the presidency.  

Unfortunately, in recent years, dysfunction at the FEC has reduced transparency in our elections and faith in our political system.  

The FEC’s inability to do its job has allowed wealthy special interests to flood our elections with vast amounts of secret spending, also known as dark money, and made it more difficult for everyday Americans to have their voices heard as candidates and elected officials favor policies that prioritize their donors.  

But how did we get to a point where the FEC has become so broken?

 

Why does the FEC exist? 

The FEC was created in 1974, as part of reforms to the Federal Election Campaign Act (FECA), following the public revelation of campaign finance abuses and corruption stemming from the Watergate scandal. A primary goal of FECA, and the new agency, was to provide the public with access to information about the money raised and spent to influence federal elections.  

For the first few decades of the FEC’s existence, it generally succeeded in enforcing federal campaign finance laws through consensus, compromise and overall collegiality, resulting in increased transparency for voters and accountability for candidates and campaigns.  

For example, the FEC implemented laws imposing restrictions on contributions and expenditures made in federal elections, laws establishing public financing for presidential campaigns, and during Campaign Legal Center (CLC) President Trevor Potter’s tenure as FEC Chairman, it issued detailed regulations on the personal use of campaign funds.  

The agency fostered a culture of consistent compromise from Commissioners across the political spectrum. When Commissioners decided cases, they would make sure that each party was treated fairly, no party took advantage of the other and that laws were applied evenly across the board.  

There was also general, bipartisan agreement regarding the importance of disclosure laws, with Commissioners from both major parties acting to apply and enforce them.  

Why has the FEC become ineffective? 

Congressional opponents of strong federal campaign finance laws were able to prioritize the recommendation and confirmation of Commissioners ideologically opposed to the FEC’s mission, exploiting the agency’s structure and rendering it ineffective.  

The FEC is led by six Commissioners, who are nominated by the president and confirmed by the Senate.

Under federal law, no more than three Commissioners can be affiliated with the same political party, and at least four Commissioners must agree to take any substantive action — including, opening an investigation, assessing a civil fine, approving an advisory opinion or writing new rules.  

While these rules were designed to prevent both major parties from turning the FEC into a partisan institution, requiring a four-vote majority to take substantive action also means that three Commissioners of the same party, acting in concert, can leave the agency in a state of deadlock, which is when the agency is blocked from doing its job.   

Since the mid-2000s, members of Congress who oppose transparency and welcome unlimited secret spending in our elections, led by Senate Minority Leader Mitch McConnell, have worked to ensure that people opposed to the agency’s core mission occupy three of those seats.  

These Commissioners have failed to enforce the law against both Democratic and Republican special interests and hold them accountable for flagrant legal violations.  

The agency’s dysfunction has also undermined voters’ right to know who is spending money in our political system.  

Between 2012 and 2019 — the very period in which outside groups’ spending on elections has exponentially increased, foreign nationals and governments have willfully manipulated our elections, and coordination between super PACs and candidates has become commonplace — the FEC deadlocked on enforcement matters more often than not, frequently refusing to even investigate alleged violations despite overwhelming publicly available information supporting them. 

As a result, the Commission has been unable to act on major issues like the wholesale lack of disclosure of secret spending through 501(c)(4) nonprofits that may engage in political activities without disclosing their funding, straw donor schemes used to conceal the true sources of election spending and illegal coordination between candidates and super PACs.  

Nor has the agency been able to revise its rules to contend with seismic shifts in the electoral landscape, including the widespread proliferation of super PACs, as well as the dramatic shift of election campaigning to digital media and streaming services.  

How can we fix the FEC? 

To try to force the agency to conduct its basic investigative and enforcement duties, CLC has filed multiple lawsuits against the FEC for failing to act on CLC complaints within the timeframe prescribed by law, or dismissing them altogether.  

In several recent cases, after we prevailed in lawsuits against the FEC for its inaction, we followed those victories with citizen enforcement suits authorized by FECA in which we, or a client we represent, pursue enforcement of campaign finance laws in the courts.  

By seeking to enforce the law in federal court, these citizen suits provide a mechanism to hold bad actors accountable and provide information that voters need, even as the FEC languishes.  

However, these citizen suits mostly remedy issues on a case-by-case basis. To truly fix the FEC, we need the systemic reform that only Congressional legislation can provide.  

Ideally, this would create a nonpartisan advisory panel to identify and recommend qualified nominees, make it harder to override the general counsel’s recommendation that investigations move forward in the early stages and address the weaknesses in the agency’s structure that have led to deadlock. 

To reduce political corruption, we need a stronger FEC to enforce campaign finance laws and hold political candidates and their donors accountable. We must give the agency the tools needed to protect voters’ right to know who is spending in our elections and help restore trust in our government.

Adav is CLC's Senior Vice President & Legal Director.
Erin is CLC's Senior Director, Campaign Finance.
Catie is CLC's Senior Director, Policy & Strategic Partnerships.
Kevin is CLC's Director, Strategic Litigation.
Saurav is the Director, Federal Campaign Finance Reform at CLC.
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