By I'm friday /

The Nation’s Campaign Finance Watchdog Cannot ‘Bark or Bite’ As Election Day Draws Near

The Federal Election Commission still lacks a quorum. 

With two weeks until Election Day, experts are expressing concern that the federal agency that oversees campaign finance law has not been able to perform the majority of its functions in 2020. 

On June 26, Republican Federal Election Commission Commissioner Caroline Hunter announced she would resign effective July 3, which led to the agency once again losing its quorum of four that it had only maintained for about five weeks after over eight months without one. The same day President Trump announced his intent to nominate Allen Dickerson, legal director at the Institute for Free Speech, to be a commissioner. The nomination was sent to the Senate and then referred to the Rules and Administration Committee on September 16. A date for Dickerson’s hearing hasn’t been announced yet, but Sen. Roy Blunt, R-Mo., committee chairman, “would like to see a quorum restored and a full slate of commissioners in place at the FEC,” said Katie Boyd, communications director for Blunt.

“Without a quorum, the agency that is supposed to be the nation's top campaign finance watchdog lacks the ability to bark or bite,” Michael Beckel, research director at Issue One, a nonprofit that seeks to reform government, told Government Executive. “Without a quorum, the FEC can neither investigate potential violations of the law nor can it fine those who it determines have broken the law. Not only can the FEC not take substantial steps on enforcement actions before the commission, without a quorum the FEC cannot respond to advisory opinion requests for legal advice or even hold public meetings. This means that candidates or political groups hoping to get legal guidance from the FEC have been unable to do so for most of the 2020 election cycle.”

Due to the prolonged loss of quorum, “some people, political committees and campaigns will also become more aggressive in ‘pushing the envelope’ if they believe there is little chance they will face consequences,” said Larry Noble, adjunct professor at American University Law School who served as FEC general counsel from 1987 to 2000. A long-term effect is that “the agency’s reputation as being ineffective will grow."

Adav Noti, Campaign Legal Center senior director of trial litigation and chief of staff, told Government Executive that the delay between Trump announcing his intent to tap Dickerson and formally nominating him was “very long and completely inexplicable.” If the FEC continues to not have a quorum, long-term issues could affect the agency’s ability to enforce and interpret the law, Noti said.

A lot of campaign finance law “was written 20 to 40 years ago and it needs pretty regular interpretation by the FEC to keep it current,” Noti added. For example, the laws don’t mention social media or digital advertisements specifically, so the agency must apply that. He also pointed out that there are still pending violations from the 2016 and 2018 campaign cycles that could run up against the five-year statute of limitations. 

However, the agency isn’t completely powerless during this time. It can still process campaign finance reports from candidates and make filings available on its website for the public to view and individuals can still file complaints with the FEC, Beckel said. 

Institute for Free Speech Chairman and former FEC Chair Bradley Smith noted that the lack of quorum won’t affect the election itself much because the agency “has no role in election administration or voting.” 

The FEC did not respond in time for comment about how it’s faring without a quorum and what its backlog of work is like. 

Michael Toner, partner at the law firm Wiley Rein LLP who served as an FEC commissioner from 2002-2007 and was the chairman in 2006, said until the commission––that is supposed to have six members–– regains a quorum, it will remain in a “holding pattern.”