Experts warn FEC is a watchdog lacking 'bark or bite' with no quorum

Experts are sounding alarms over the status of the Federal Election Commission (FEC), which has been largely paralyzed from performing much of its work. 

Former Commissioner Allen Dickerson’s departure from the body at the conclusion of his term at the end of April gave the normally six-person FEC its third vacancy. A loss of quorum now prevents the FEC from carrying out many of its responsibilities, including holding meetings, conducting investigations and issuing penalties against potential violators. 

An apparent lack of urgency in filling the vacancies could cause a significant backlog of cases as the midterm elections approach. 

“It really puts the country in a bind when the FEC doesn't have a working quorum, without enough commissioners to do its job, everything just piles up,” said Michael Beckel, the senior research director for the cross-partisan group Issue One, which educates and advocates on issues concerning U.S. democracy, elections and government. 

“At the end of the day, without a quorum, the FEC is a watchdog that doesn’t have the ability to bark or bite,” he said. 

The lack of quorum is a rarity in the agency’s 50-year history but not entirely without precedent. The first instance occurred in 2008, toward the end of George W. Bush’s presidency. 

Beckel said political pressure contributed to the end of that six-month gap in the FEC’s work as Republican presidential nominee John McCain used public financing for his campaign and needed the agency to sign off on the funding, which it could only do with the quorum of at least four members. 

But no major party nominee has used public financing since then, and Beckel expressed doubt about a similar situation arising to create the same pressure. 

“Without the same sort of political pressure existing now, it's hard to imagine what contours might arise that would lead to a logjam being broken,” he said. 

The other instances came in Trump’s first term, in 2019 and 2020, with just a one-month respite between them.

Complaints can still be submitted to the agency during this period, but the FEC can’t enact fines or other penalties, issue new rules or advisories or conduct audits. Since the current loss of quorum began, two scheduled public meetings have been canceled. 

The pending situation could be similar to the one that Dickerson, Commissioner Shana Broussard and former Commissioner Sean Cooksey inherited when the Senate confirmed their nominations to the agency in December 2020, ending the last loss of quorum. The FEC last had six members in January.

Dickerson told The Hill in an interview that much of the backlog dated back to the 2016 election cycle, and the commission’s members had to make “very difficult decisions,” taking into account a limited budget, about what cases they could move forward on and what needed to be let go given time constraints. 

He credited Broussard, who served as chair in 2021 while he served as vice chair, as being key to clearing the backlog. 

“We had a shared commitment to ensuring that the commission was restored to functioning order, and that required dealing with, in many cases, old and complex cases that were really making it difficult for the agency to get back up and running,” Dickerson said. “And that was a lot of hard work and late nights.” 

He said the extent of the problem that the current lack of quorum causes for the FEC will depend on how long it lasts and the number of credible complaints that are filed, adding that often complaints aren’t well argued or are designed more for “headlines” than the law. 

Dickerson said a lot of focus is on the FEC’s enforcement docket, but he expressed more concern about its current inability to engage on rulemaking and requests for advisory opinions to assist the public. 

“The closer one gets to an election, the more likely it is that the outside world is going to need guidance from the commission on novel questions of the law,” he said. “And until a quorum is restored, that's a key function of the commission that may be undervalued by some people, which I think is maybe its most important function.” 

Cooksey stepped down from his post on the first day of Trump’s term and expressed hope that Trump would nominate appointees to fill the positions of commissioners whose terms have expired. Commissioners are allowed to continue to serve on the FEC even after their term has expired until the Senate confirms a replacement. 

Two of the three current commissioners, Broussard and James Trainer III, are serving on expired terms. 

But Trump removed former Chair Ellen Weintraub, a Democrat, in February and didn't lay out any process to replace her. Weintraub argued her unilateral removal by Trump was illegal, but her seat has been vacant since then. 

Weintraub said in an interview that Congress anticipated the problem of a new commissioner not being ready in time to replace an outgoing one in allowing commissioners to remain until a replacement is set. 

“That is a normal process. That's what should have happened in my case, and had I been replaced in the normal course, rather than summarily moved, the commission would not be without a quorum today,” she said. 

The Hill has reached out to the White House for comment about whether Trump has any plans to nominate additional commissioners soon. The FEC declined to comment on the vacancies and possible future nominations. 

While the lack of quorum has mostly occurred during the Trump administration, numerous administrations have allowed commissioners to continue to serve well past their term’s expiration. 

Dickerson said he wouldn’t consider this to be a sign of a lack of prioritization but an effect of the large size of the federal government and smallness of the FEC. 

“We need to hope that those seats are filled. I think it's best for the republic to have six working commissioners with a range of views and with significant bipartisan buy-in on its decision-making,” he said. “But I'm not going to characterize the decision-making of the government overall based upon an agency the size of the FEC.” 

Beckel said the loss of a quorum shouldn’t be interpreted as an opportunity for candidates to “push the envelope,” as willful violations of campaign finance law can still face prosecution from the Justice Department (DOJ) and complaints can still be filed to the FEC. 

“There will still be watchdogs out there filing campaign finance complaints,” he said. “There will still be partisan actors out there who are making sure that their opponents don't do anything awry.” 

But Weintraub and some reform groups expressed concern that bad actors could feel emboldened to commit violations. 

Omar Noureldin, the senior vice president of policy for the watchdog Common Cause, noted the DOJ’s shrinking of its public integrity unit in the aftermath of the resignations of multiple officials over the case against New York City Mayor Eric Adams being dropped. 

“It's very clear, from what we've seen from the civil rights division to the public integrity section to the tax division, that enforcement is not going to be something that is a priority,” he said. 

“There are state laws that regulate campaign finance and city laws for local elections and so those are still avenues by which we can hold some folks accountable,” Noureldin added. “But it's not going to be at the scale that the FEC can do.” 

But some also were concerned about the potential members the Trump administration would choose. 

Erin Chlopak, the senior director of campaign finance for the Campaign Legal Center, pointed to Trump’s executive order exerting control over federal agencies, including the FEC. She said this is “completely contrary” to Congress’s vision of the agency as independent. 

“That independence is uniquely crucial to its ability to do its job,” she said. “If that's going to be an issue, then that's yet another reason why restoration of the forum poses different concerns, sort of unique concerns in this moment.”