New campaign finance laws are useless without an effective Federal Election Commission enforcing those laws.
October 09, 2019
As the 2020 campaign season swings into high gear, the Federal Election Commission (FEC)—the nation’s campaign finance watchdog—has effectively gone out of business. Its vice chairman and commissioner, Matthew S. Petersen, resigned on August 31, leaving the commission without a quorum.
The FEC can no longer adopt or amend rules, issue advisory opinions, initiate or approve enforcement actions against violations, or conduct investigations. It is also powerless to bring actions against those who fail to file required campaign finance disclosure reports. Indeed, it can do little more than provide general information about campaign finance law.
The commission is often criticized for its ineffectiveness. Hamstrung by partisan and ideological divisions, the FEC is frequently deadlocked on important campaign finance questions. Yet, it can still play a key role in enforcing campaign finance disclosure and in advising on tricky legal issues. A case in point: During the September 12 Democratic presidential debate, candidate Andrew Yang announced that his campaign would give ten lucky Americans $12,000 “freedom dividends” to show how his universal basic income proposal would work. That raised the question, would those payments be legal? Campaign finance specialists have debated the issue, but an FEC ruling is needed to provide clarity.
The FEC’s six members are nominated by the president and confirmed by the Senate for six-year terms, with no more than three from any one party, and a quorum of four necessary to do business. Despite the FEC’s position in the federal campaign finance system, neither the president nor the Senate seem interested in filling vacancies when they occur. At the time of Commissioner Petersen’s resignation, the commission had only four members, with one vacancy more than a year-and-a-half old, and a second more than two-and-a-half years old.
No one knows how long this will last. President Trump made one nomination—a Republican—some time ago, but traditionally the Senate considers nominations only in bipartisan pairs. There has been talk in Washington of nominating a complete slate of six new commissioners, but without much sense of urgency.
People unhappy with our campaign finance system often call for new laws. But the sorry state of the FEC underscores the fact that new laws are useless without an effective agency capable and committed to enforcing those laws.
Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. His research, writing and teaching focus on state and local government law, legislation, the law of the political process, government ethics and property.