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One of the Two Agencies That Probes Meddling in U.S. Elections is Broken

The Federal Election Commission is profoundly dysfunctional.

The by-now infamous meeting between Donald Trump Jr and a Russian lawyer in June 2016 has become a focus for the FBI’s probe into last year’s US election campaign. The agency has assembled a grand jury and issued subpoenas to examine evidence related to the meeting, which the president’s son, along with other senior campaign members, took after being promised incriminating material on his father’s political rival, Hillary Clinton. He may have broken a federal law prohibiting foreign participation in elections.

But another US government agency, the Federal Election Commission (FEC), should be involved too. The commission’s job is to investigate civil violations of the Federal Election Campaign Act, including the ban Trump Jr may have broken. However, the FEC is so profoundly dysfunctional that both current and former employees tell Quartz they doubt it will even launch a probe over Trump Jr’s meeting, much less hand out any punishment.

The FEC’s board needs to take several votes to even agree to investigate the meeting, says a current employee who asked not to be named, and whether that will happen is unclear. “I don’t think that there is any chance that they will actually investigate,” says Ann Ravel, a Democratic former commissioner of the FEC, who is now a fellow with New America, a think tank.

The Trump administration’s disregard for norms has made it clear that many of the US’s checks and balances on the abuse of power functioned largely thanks to an “honor system” that is now breaking down, as Garry Kasparov, the former chess champion and now chairman of the Human Rights Foundation, put it. The FEC’s troubles began years ago, but its toothlessness is just now becoming fully visible.

Inspired by Watergate

The FEC was created after president Richard Nixon resigned in 1974. It was one of a slew of reforms designed to increase public confidence in US democracy, which had been badly shaken after his impeachment over the Watergate affair. Candidates for federal office must register with the FEC and report campaign donations to it, giving voters a way to see who is supporting them.

While the FBI investigates criminal violations of election laws which could result in jail time, the FEC’s role is essentially to act as a traffic cop for elections, monitoring candidates and handing out fines for infractions. The FBI would have to prove that Trump Jr’s actions were “clear, knowing, and willful” to prosecute him, says Ravel; proving a civil violation is easier, and while the punishment (usually a fine) is less severe, it still sends a message, she said.

Since the agency’s creation, however, it’s been stymied by its very structure. Decisions are made by a six-commissioner board, comprised of no more than three members from each US political party. Four of them need to agree to pursue an investigation. Inevitably, votes split down party lines, making that agreement hard to get.

Twenty years ago, the FEC was dubbed (paywall) “The Little Agency that Can’t” by the Washington Post, and described as “fractured by partisan bickering,” and “paralyzed by the commission’s own convoluted procedures.” Its chairman, John Warren McGarry, a Democrat, said at the time, “We have our hands tied behind our backs.”

Now things are even worse. The 330-employee agency currently has just five active commissioners—three Republicans, one Democrat and one independent, Steven Walther, who is the chair. Every one of them is working on an expired term and should have been replaced years ago. And amid what is surely the most extreme case of foreign interference in a US election in a generation, the FEC appears to be sitting on its hands.

“The FEC’s track record in recent years is that there are three commissioners that will never vote to investigate a matter unless it is a very minor violation,” says Adav Noti, a senior director with the Campaign Legal Center (CLC), which works for greater transparency in US elections, and who previously worked in the FEC for over a decade.

From partisan to broken

Traditionally the president nominates commissioners from his own party and the Senate minority leader nominates candidates from the opposition. The Senate then votes on whether to approve them.

Commissioners once acted in a predictably partisan way: Democrats protected Democrats from investigations into their campaign financing, and Republicans protected Republicans, says Noti. Now there’s a different sort of split: Democrats pursue stricter regulation and enforcement, and Republicans the opposite, regardless of which party it might impact. “We’ve reached a point where on any matter of consequence there is a fundamental, ideological divide,” Noti says.

The total number of fines the FEC issued to violators dropped from about $6 million in 2006 to less than $600,000 in 2016, Ravel noted in a 25-page report that she issued when she stepped down from the agency in February. On “nearly every case of major significance over the past several years,” the commission has deadlocked, or voted 3-3 on whether to investigate.

For the FEC’s current stalemate, former officials blame Senate majority leader Mitch McConnell. During the Obama administration, one nominee was blocked for 18 months before withdrawing, and McConnell was viewed as a “buzz saw” who would block any reform-minded candidates. (Two of Obama’s nominees were approved in 2013.) To be fair, McConnell and the Republicans aren’t alone in this tactic—in years before, Democrats had blocked nominees for the commission as well.

Ravel also cites former FEC commissioner Donald McGahn’s campaign to limit the agency’s efficiency, which included persuading the other Republican commissioners to vote with him to block investigations and alienating the Democratic commissioners. “The decimation of the FEC started when McGahn was appointed” in 2008, she said. McGahn is now Trump’s chief White House counsel, so the FEC is “probably newly emboldened to do absolutely nothing,” she said. McGahn’s office did not respond to a request for comment.

One of the FEC’s more serious failings is its inability to police the 2010 Citizens United Supreme Court decision, which allowed corporations and unions to contribute without limit to election campaigns as long as they don’t coordinate their activities (such as campaign ads) with candidates. That rule only works if there is a true firewall between donors and candidates, as Supreme Court judge Anthony Kennedy wrote in his majority opinion. Without the FEC ensuring that firewall exists, politicians are “responsive to the people who bankrolled them and that is terrible for democracy,” Noti says.

Among other issues, he says, the FEC should have investigated candidates openly coordinating their activities with Super PACs, the fund-raising giants, in the past presidential election, and campaign money being routed through shell companies. Both activities are illegal.

An FEC spokeswoman said she could not comment on individual investigations. Walther, the chairman, didn’t respond to questions.

The Trump meeting

The case that Trump Jr’s meeting with a Russian lawyer, Natalia Veselnitskaya, broke the law rests in part on his “I love it” email—the “it” being information that, according to Rob Goldstone, who arranged the meeting, would “incriminate Hillary” and was “part of Russia and its government’s support” for his father.

“There is a blanket prohibition” on soliciting a contribution from a foreign national during a US political campaign, Noti said, and Trump Jr’s meeting clearly violated that prohibition. The Campaign Legal Center and other election watchdogs have filed a lawsuit demanding the FEC investigate the meeting. An FEC spokeswoman confirmed it had received a complaint about the meeting, but couldn’t say whether the commission had voted to investigate or not; only after the complaint is resolved will the agency’s actions be made public.

“What happened in this case is potentially illegal,” Ravel said, and “the facts need to be known and an investigation has to take place in order to know.”

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