There are 446 matters before the agency and 275 staff reports awaiting decisions from the commissioners.
The nation’s campaign finance watchdog regained a quorum on Wednesday, and thus the ability to carry out the majority of its functions. Now commissioners must catch up on a vast backlog of work.
On Wednesday, the Senate confirmed three nominees to the Federal Election Commission who President Trump tapped following Republican FEC Commissioner Caroline Hunter announcing she would resign, effective July 3. That led to the commission, which is supposed to have six members, once again losing its quorum of four that it had only maintained for about five weeks after over eight months without one. It was unable to launch investigations, issue advisory opinions, publicize rules or decide enforcement cases.
While Shana Broussard received bipartisan support, the votes for Sean Cooksey, general counsel to Sen. Josh Hawley, R-Mo., and Allen Dickerson, legal director at the Institute for Free Speech, were largely along party lines. Broussard was most recently counsel to current FEC Commissioner Steven Walther, and she will be the agency’s first Black commissioner.
FEC Commissioner Ellen Weintraub welcomed her new colleagues and said she looks “forward to a cordial and productive working relationship,” in a statement on Wednesday. She added: “There is much work to be done. The FEC has not had a full complement of commissioners since March 2017.”
There are 446 matters before the agency awaiting some type of action and 275 staff reports awaiting decisions from the commissioners. Of the 275, 113 have at least one recommendation from the Office of General Counsel “that the commission finds reason to believe that the law may have been violated,” and 35 of the 113 are within 18 months of the agency’s 5-year statute of limitations. Also, 21 of the 275 are on foreign-national matters, Weintraub said.
There were previously just three commissioners (an independent, Democrat and Republican). By law, no more than three members can be from the same party. While there have been and still are some concerns about the ideological differences among the commissioners, experts were generally glad that the agency can fulfill its responsibilities again.
“It’s good news that the FEC can get back to work and begin addressing the hundreds of enforcement matters on its docket,” said Meredith McGehee, executive director for the nonprofit Issue One, in a statement on Wednesday. “However, for the FEC to be an effective watchdog, it needs to not only have a quorum of commissioners, but a critical mass of commissioners who are dedicated to upholding our nation’s campaign finance laws.” McGehee has expressed some skepticism about Dickerson, Cooksey and Trey Trainor, who was confirmed in May.
McGehee called on Congress and the incoming Biden administration to “take reforming the FEC seriously to ensure that the American people have a dedicated campaign finance cop on the beat.”
Erin Chlopak, director of campaign finance strategy for the Campaign Legal Center, told Government Executive on Thursday that while she would have liked the FEC to have regained a quorum before the 2020 elections––as other experts previously said–– it’s “better late than never.” She hopes this has been an opportunity for the agency to “actually do its job,” especially on the matters of foreign inference and internet disclaimers.
“In the past, even when they have had a quorum, the FEC has been notoriously dysfunctional in its ability to do anything,” she said “I’d love to see the new blood on the commission make a change on that, but I guess that remains to be seen.”
Institute for Free Speech Chairman and former FEC Chair Bradley Smith also welcomed the news about the quorum. “The FEC’s temporary lack of a quorum was never a free pass for campaigns to ignore the law,” he said in a separate statement to Government Executive. “Now that three new commissioners have been confirmed, the FEC can get to work on the backlog of cases. Hopefully, new blood can also make progress on long-pending issues at the Commission, such as a rule for online ad disclaimers.”
Larry Noble, adjunct professor at American University Law School who served as FEC general counsel from 1987 to 2000, was also angered that the FEC “was effectively sidelined” during the 2020 election and blamed President Trump and the Senate, but now fears “inaction and lawlessness” with a quorum.
“The new Republican commissioners appear to believe it is more important to ensure wealthy interests can continue to secretly buy influence and access than it is to enforce the law,” he told Government Executive.
Weintraub, the only one of the three sitting commissioners to release a formal statement, outlined how she believes the full commission must tackle its backlog.
“We should resist the temptation to pick only the low-hanging fruit in our backlog,” Weintraub stated. “The real mark of our progress will be not how many less-significant matters we dismiss, but how many quite significant matters we address.”