Federal Election Commission

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]

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]

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 December 9, three new members were confirmed by the Senate.

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.[17] The chair of the commission in 2020 is James Trainor, who was elected on June 18, 2020, succeeding Caroline Hunter.

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.

Under the statute, the most significant powers of the FEC require the affirmative vote of four commissioners.[8][18] 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,”[19] especially in an age of polarization.[8]

From 1996 to 2006 the FEC tied in only 2.4% of Matters Under Review (MURs).[20] In 2008 and 2009, deadlocks spiked to 13% and to 24.4% of MURs in 2014.[21][22] By 2016, commissioners deadlocked on more than 30% of substantive votes and consequently enforcement intensity decreased significantly.[23][8]

Critics of the FEC, including many former commissioners[24] 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.[25] 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.

Critics including former FEC chairman Bradley Smith and Stephen M. Hoersting, former 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.[26]

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.[27][28]

Critics of the commission also argue that the membership structure regularly causes deadlocks on 3-3 votes,[29] but others argue that deadlocks are actually quite rare,[30] and typically based on principle rather than partisanship.[31] 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.[32]

• 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)