Election agency limps into 2020 cycle
Partisan disputes and a stagnating budget have ground the Federal Election Commission (FEC) nearly to a halt, as a backlog of cases grows and the number of enforcement fines plummet.
A bitter, decadelong feud between Republicans and Democrats on the panel has left staff demoralized to the point that dozens have quit in recent years. There are now 304 employees at the FEC, down from 385 in 2005, according to federal records.
Among the exodus are full-time attorneys in the enforcement division. A new report by the watchdog group Issue One found their numbers have dwindled to 41, compared with 59 in 2010.
During that time, campaign finance law has evolved dramatically.
In the years after the Supreme Court’s 2010 decision in Citizens United v. FEC, super PACs and dark money organizations have become a dominant force in politics, and the agency’s Democratic and Republican commissioners have rarely been able to agree on new rules governing how those outside groups operate.
Commissioners say they are frustrated with the way the agency has virtually ceased to operate. Just as Congress seems incapable of reaching bipartisan agreement, so too are the partisan commissioners who sit on the panel.
“It’s not a problem of gridlock, it’s not a problem of disagreement, it’s a problem of half the commissioners don’t agree with the mission of the agency,” said FEC Chairwoman Ellen Weintraub, who has sat on the commission since 2002. “It’s the Republican commissioners who are against enforcement.”
The agency, established after the Watergate scandal, has always required bipartisan cooperation to work, in order to prevent one party from dominating the country’s election laws.
“The FEC was designed to preclude partisan enforcement, and that’s why you’ve got this six-commissioner structure and the fact that you need four commissioners to take action, forcing bipartisan consensus,” said Michael Toner, a Republican who once served as FEC chairman.
Election lawyers who work with or appear before the FEC say the stalemate exists because of a deep mistrust between the Democratic and Republican commissioners that began about a decade ago, with the arrival of a new crop of commissioners that included Donald McGahnDonald (Don) F. McGahnCongress hits rock bottom in losing to the president in subpoena ruling Rudy Giuliani’s reputation will never recover from the impeachment hearings In private moment with Trump, Justice Kennedy pushed for Kavanaugh Supreme Court nomination: book MORE, who later served as President TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE’s first White House counsel.
McGahn, an election law expert and an opponent of restrictive campaign finance rules, led the commission’s three Republicans in blocking new limits he believed went beyond what Congress had approved, frustrating the three Democrats on the panel who wanted to set more guardrails.
McGahn did not respond to a request for comment.
The FEC is one of the least popular places to work in government. It routinely ranks near the bottom of all government agencies in employee satisfaction surveys conducted by the Office of Personnel Management. In OPM’s most recent Federal Employee Viewpoint Survey, only five other agencies, out of 74 surveyed, notched lower satisfaction scores.
Weintraub noted the satisfaction scores have risen in recent years, an improvement perhaps attributable to the agency’s relocation to a new office building after years in a run-down facility across the street from the FBI headquarters in downtown Washington.
In the past three years, 24 employees have left the FEC without being replaced — including two commissioners, Democrat Ann Ravel and Republican Lee Goodman, who both quit before their six-year terms expired.
“They have not replaced anybody that’s absent. They haven’t replaced me, and they didn’t replace Lee Goodman,” Ravel, who is now running for a seat in the California state Senate, said in an interview. “It’s as if it has gotten worse.”
Both the FEC’s inspector general and its deputy inspector general have quit. Meanwhile, staff director Alec Palmer also serves as the agency’s chief information officer, dual roles he has held since 2009.
The FEC has been without a full-time general counsel since 2013, and without a director of accounting since 2016.
As the staff exodus has continued, the number of cases waiting to be adjudicated has risen.
In 2010, the backlog of open cases stood at 100. Today, there are 329 open investigations. About half a dozen attorneys who ostensibly work in the agency’s enforcement division have been seconded to the four remaining commissioners, Weintraub said.
With so few attorneys and so many cases open, the money the agency has collected in fines has tumbled precipitously.
In 2006, the FEC collected more than $7.3 million in fines from those who had broken campaign finance rules. In four of the past five years, the agency has collected less than $1 million.
This year, the FEC penalized several groups in connection to improper donations made during the 2016 election.
The gridlock has prevented even seemingly obvious violations of campaign finance law from being punished. The FEC has failed to reach consensus in three cases, involving super PACs that backed Mitt RomneyWillard (Mitt) Mitt RomneyMilley discussed resigning from post after Trump photo-op: report Trump on collision course with Congress over bases with Confederate names Attorney says 75-year-old man shoved by Buffalo police suffered brain injury MORE’s 2012 presidential campaign; former Ohio Gov. John Kasich’s 2016 White House bid; and House Democrats, because Republican commissioners said there were no clear rules specifying that the donations under investigation were illegal.
The commission has not been able to reach a consensus on rules that would have specified whether, in fact, those donations were illegal.
“Those candidates and committees who would tend not to comply with the law are much more likely to do that, because they recognize that the FEC is not going to make decisions, either in a timely basis or at all, so they can stretch the law much more consistently than otherwise might happen,” Ravel said. “Many people don’t recognize how significant the FEC is, and how its function is to assure that the electoral process is fair.”
The president has the power to nominate new FEC commissioners, who must then be confirmed by the Senate. Traditionally, presidents have nominated candidates recommended by Senate party leaders.
President Trump nominated Republican attorney Trey Trainor to replace one of the remaining four commissioners, Republican Matthew Petersen, in September 2017. The Senate never voted on his nomination, even after it was resubmitted in the new Congress.
The White House has not nominated anyone to fill Ravel or Goodman’s seats.
The four remaining commissioners are all serving beyond the end of their six-year terms. Weintraub, nominated by former President George W. Bush, has served more than a decade past the end of her term.
FEC rules require four commissioners to be present to adjudicate any open cases. If one of the four remaining commissioners leaves, the agency will be unable to meet the required quorum.
Capitol Hill aides say they are waiting for both parties to recommend an entirely new set of FEC commissioners to fill the other five seats. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate advances public lands bill in late-night vote GOP senator to try to reverse requirement that Pentagon remove Confederate names from bases No, ‘blue states’ do not bail out ‘red states’ MORE (R-Ky.) is unlikely to advance any nominee to the floor unless he or she is accompanied by another nominee from the other party.
“It’s always beneficial when the FEC has new blood, at the commissioner level and otherwise,” Toner said. “If you have new FEC commissioners, there could be the ability to reach some consensus on this because it’ll be a new team of people.”