Federal Election Commission

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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,[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."

The commission has not functioned since late August 2019, with an exception for the period of May 2020 to July 2020, due to lack of a quorum.[5][6] In the absence of a quorum, the commission cannot 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.[7]

History and membership[edit]

History[edit]

The FEC was established in 1974, in an amendment of the Federal Election Campaign Act (FECA), to enforce and regulate campaign finance law.[8] 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.[8] 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.[8] They were to be confirmed by both Houses of Congress, rather than only by the Senate.[8]

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.[8] 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.[8]

Since 1990, the FEC has grown more polarized, with considerable deadlocks in decision-making.[9]

Membership[edit]

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.[10] However, members continue to serve after their terms would expire until a replacement is confirmed,[11] 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.[12] 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,[13] 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 members, and was unable to conduct most of its regulatory and decision-making functions due to lack of a quorum.[11]

Trainor was confirmed by the Senate on May 19, 2020, restoring the commission's quorum of four.[14] One meeting was held online, due to the coronavirus pandemic, on June 18, 2020.[15] On June 25, however, Caroline Hunter (Republican) resigned, effective July 3, with the result that the commission once again lacked a quorum.[16] On June 26, Trump indicated his intention to nominate Allen Dickerson (Republican) a new member of FEC.[17][18] As at August 1, 2020, no nominations have been submitted to the Senate.[19]

The chair of the commission rotates among the members each year, with no member serving as chair more than once during a six-year term. However, a member 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.[20] The chair of the commission in 2020 is James Trainor, who was elected on June 18, 2020, succeeding Caroline Hunter.

Official duties[edit]

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

Duties[edit]

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.[8]

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.

Procedures and deadlock[edit]

Under the statute, the most significant powers of the FEC require the affirmative vote of four commissioners.[8][21] 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.[8] The FEC can also publish advisory opinions on campaign finance issues and issue campaign finance regulations.[8]

Because the FEC's most important powers, those of enforcement, civil actions, advisory opinions, and rule-making, require the affirmative vote of four commissioners, and no more than three commissioners can be members of the same political party, bipartisan support is required.[8] With a supermajority requirement and an even number of commissioners, critics argued that it was “set up for deadlock and political shenanigans,”[22] especially in an age of polarization.[8]

From 1996 to 2006 the FEC tied in only 2.4% of Matters Under Review (MURs).[23] In 2008 and 2009, deadlocks spiked to 13% and to 24.4% of MURs in 2014.[24][25] By 2016, commissioners deadlocked on more than 30% of substantive votes and consequently enforcement intensity decreased significantly.[26][8]

Criticism[edit]

Campaign finance[edit]

Critics of the FEC, including many former commissioners[27] 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.[28] 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[edit]

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.[29]

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.[30][31]

Deadlocks[edit]

Critics of the commission also argue that the membership structure regularly causes deadlocks on 3-3 votes,[32] but others argue that deadlocks are actually quite rare,[33] and typically based on principle rather than partisanship.[34] 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.[35]

Commissioners[edit]

Current[edit]

Name Position Party Appointed by Sworn in Term expires[36]
Steven T. Walther Vice Chairman Independent George W. Bush June 24, 2008 April 30, 2009

Term expired—serving until replaced. A replacement's term would expire April 30, 2021.

Ellen L. Weintraub Commissioner Democratic December 9, 2002
by recess appointment
April 30, 2007

Term expired—serving until replaced. A replacement's term would expire April 30, 2025.

James E. Trainor III Chair Republican Donald Trump May 19, 2020 April 30, 2023
vacant Commissioner

April 30, 2021

vacant Commissioner April 30, 2023
vacant Commissioner April 30, 2025

Vacancies and pending nominations[edit]

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
Caroline C. Hunter Resignation July 3, 2020 Allen Dickerson September 16, 2020
Ann Ravel Resignation March 1, 2017 Shana M. Broussard October 30, 2020
Lee E. Goodman Retirement February 16, 2018 Sean J. Cooksey


Former[edit]

See also[edit]

Case law[edit]

References[edit]

  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)Public domain 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. ^ [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
  6. ^ FEC losing quorum again after Caroline Hunter resigns Politico
  7. ^ Senate confirms appointee to Federal Election Commission, restoring panel’s voting quorum
  8. ^ a b c d e f g h i j k l m Padilla-Babilonia, Alvin. "Reforming the Federal Election Commission: Storable Voting." Wyo. L. Rev. 20 (2020): 287.
  9. ^ 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.
  10. ^ "About". Federal Election Commission. Retrieved June 3, 2017.
  11. ^ a b Levinthal, Dave (August 26, 2019). "Federal Election Commission to Effectively Shut Down. Now What?". The Center for Public Integrity. Retrieved January 24, 2020.
  12. ^ "Leadership and structure". FEC.gov. Retrieved July 11, 2020.
  13. ^ "Six Nominations and One Withdrawal Sent to the Senate Today". The White House. Retrieved May 19, 2020.
  14. ^ "Federal Election Commission Regains Powers With New Member". publicintegrity.org. May 19, 2020.
  15. ^ "June 18, 2020 open meeting". FEC.gov. Retrieved June 26, 2020.
  16. ^ Lippman, Daniel (June 26, 2020). "FEC losing quorum again after Caroline Hunter resigns". POLITICO. Retrieved June 26, 2020.
  17. ^ Trump Nominates New Federal Election Committee Commissioner
  18. ^ Barr, Luke (June 27, 2020). "FEC commissioner resigns from post". ABC13 Houston. Retrieved June 30, 2020.
  19. ^ Navy Contractor Fined in Rare Campaign Finance Enforcement Case
  20. ^ "Ellen L. Weintraub". Federal Election Commission. Retrieved January 9, 2020.
  21. ^ 52 U.S.C. §§ 30106, 30107.
  22. ^ Boatright, Robert G. The Deregulatory Moment?: A Comparative Perspective on Changing Campaign Finance Laws. University of Michigan Press 62 (2015).
  23. ^ Michael M. Franz, The Devil We Know? Evaluating the FEC as Enforcer, 8 ELECTION L.J. 167, 176 (2009).
  24. ^ 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).
  25. ^ R. SAM GARRETT, CONG. RES. SERV., NO. R 44319, THE FEDERAL ELECTION COMMISSION: ENFORCEMENT PROCESS AND SELECTED ISSUES FOR CONGRESS 10 (2015).
  26. ^ 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].
  27. ^ Note, Eliminating the FEC: The Best Hope for Campaign Finance Regulation? 131 Harv. L. Rev. 1421 (2018).
  28. ^ See, e.g., Editorial, The Feckless F.E.C., Rebuked, N.Y. TIMES (Sept. 23, 2016), https://nyti.ms/2pxe862 [https://perma.cc/RKF3-6FB8] (“[M]ost campaign professionals treat the F.E.C. as an impotent joke . . . .”)
  29. ^ 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.
  30. ^ Berger, Judson (June 30, 2016). "FEC Democrats tried to punish Fox News over debate changes, files show". Fox News.
  31. ^ Takala, Rudy (September 27, 2016). "Regulators spar over whether unregulated Internet harms minorities". Washington Examiner.
  32. ^ 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
  33. ^ "Opening Statement of Bradley A. Smith, Chairman of the Federal Election Commission, Before the Senate Committee on Rules and Administration, June 4, 2004" (PDF).
  34. ^ 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
  35. ^ Confessore, Nicholas (August 25, 2014). "Election Panel Enacts Policies by Not Acting". New York Times. Retrieved August 26, 2014.
  36. ^ "Commissioners - FEC.gov". FEC.gov.
  37. ^ FEC Elects Officers for 2008 Archived September 16, 2008, at the Wayback Machine, FEC press release, July 10, 2008.
  38. ^ New FEC Commissioners Assume Office Archived September 16, 2008, at the Wayback Machine, FEC press release, July 8, 2008.

Further reading[edit]

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