Stalled Enforcement: The Impact of the FEC‘s Quorum Crisis
For months, the Federal Election Commission (FEC) has been unable to fully function due to a lack of a quorum – the minimum number of commissioners needed to make official decisions. This paralysis has raised concerns about the enforcement of campaign finance laws,though experts disagree on the extent to which the situation represents a meaningful change.
The FEC requires at least four of its six commissioners to vote on rulings, with a rule preventing any single political party from holding more than three seats.even when fully staffed, the Campaign Legal Center argues the FEC has historically been ineffective at regulating campaign finance violations, frequently deadlocking on votes. According to Brendan Noti of the Campaign Legal Center, ”The sad reality is that the Federal Election Commission was not accomplishing very much of any value, even when it had a full complement of commissioners.” He believes the current situation, while a ”terrible sign,” doesn’t drastically alter a pre-existing pattern of inaction.
However, former FEC Commissioner Allen Smith disputes this characterization, suggesting that disagreement with FEC decisions shouldn’t be equated with a failure to enforce the law. “I think the FEC takes a bum rap there,” Smith stated. “If the FEC doesn’t take action we shouldn’t presume that they’re not enforcing the law.”
Noti further contends that campaign finance limits have weakened since the Supreme Court’s Citizens United decision, and the FEC has failed to address this trend. He points to a lack of action from both the FEC and Congress to “right the ship” and regulate corporate and large individual spending in elections, noting the FEC has become “more and more toothless” over time.
Despite the FEC’s limitations, other avenues for enforcement exist. The Department of Justice theoretically has an oversight role, but Noti notes the Trump governance substantially reduced DOJ staff and demonstrated opposition to election law enforcement.
Private parties can also pursue enforcement. Campaign finance laws require individuals to first address concerns with the FEC, and they can sue the agency if they disagree with its rulings.Though, this process can be lengthy.
Stuart McPhail, director of campaign finance litigation at Citizens for Responsibility and Ethics in Washington (CREW), highlights a built-in mechanism allowing lawsuits to bypass the FEC when it lacks a quorum or sufficient staffing. “The loss of quorum does not prevent these private suits,” McPhail explained. “Rather, it speeds them up, allowing litigants to leapfrog the agency process.” He also asserts that even with a quorum, the FEC ”rarely enforced the law and instead acted to protect the secrecy of dark money sources,” often issuing minimal fines compared to the scale of illegal spending.
McPhail believes Congress anticipated potential under-enforcement by the government and thus empowered private litigants to challenge powerful actors and reveal sources of funding in elections.
