A dubious anniversary for the Federal Election Commission

Anniversaries are often festive.

Not today at the Federal Election Commission.

As of April 30, the FEC's current four commissioners have been on the commission for a total of 32 years longer than they should have been.

Vice Chairwoman Ellen Weintraub’s six-year term expired 11 years ago, when George W. Bush occupied the White House, the “Great Recession” had yet to occur and the most momentous campaign finance decision of the century, Citizens United v. FEC, was still two-and-a-half years hence.   

Commissioner Steve Walther (nine years), Commissioner Matthew Petersen (seven years) and Chairwoman Caroline Hunter (five years) have also stayed aboard long after they should have been out of a job. Beyond the holdovers, there are two vacant spots on the commission.

In separate interviews Thursday with the Center for Public Integrity, each of the four “holdover”  commissioners — who may continue to serve until President Donald Trump and the US Senate replace them — confirmed that they have no immediate plans to step down.

They all know the FEC, in the midst of a critical midterm election campaign, is teetering on the brink of a de facto shutdown: If one commissioner retires, resigns or otherwise isn’t present, the agency that regulates and enforces campaign money laws loses its four-commissioner quorum and can’t conduct high-level business. No passing rules. No penalizing scofflaws. No providing official advice to political committees seeking it.

“If the commission loses a quorum … it obviously affects the public,” Hunter said.

Not that the FEC’s commissioners work together seamlessly when the agency is fully operational.

A report this month by the Library of Congress’ Congressional Research Service notes that “achieving at least four agreeing votes is sometimes difficult, even with six members present. Vacancies make the task harder by reducing opportunities for a coalition of at least four votes.”  

Republicans frequently accuse Democrats of overreach — attempting to enforce federal election laws that Congress hasn’t passed, and therefore, don’t exist. Democrats accuse Republicans of rank failure to enforce laws that they argue should be obvious to any liberal or conservative.

Thursday’s commission meeting — the first in the bipartisan agency’s sparkling new headquarters near Washington, DC's Union Station — provided a clear indication that some commissioners’ patience with one another, like their terms, has also expired.  

When Weintraub suggested that Hunter could have adjusted the commission’s April 12 public meeting to accommodate her trip to Lithuania for an elections conference, Hunter would have none of it. “Absolutely outrageous!” Hunter shot back, noting that the four commissioners, including Weintraub, voted to simply cancel the agency’s meeting for lack of a quorum. Hunter later questioned the point of Weintraub’s sojourn, which Weintraub defended as an opportunity to “advance democracy.”

Republicans Hunter and Petersen on Thursday also issued a scathing rebuttal to Weintraub’s decision this month to “break glass in case of emergency” and not vote to further defend the FEC in federal court — a highly unusual occurrence — in the lawsuit CREW v. FEC.

They lambasted Weintraub, a Democrat, for seeking “to remove the commission from its enforcement role” and “attempting to obstruct routine commission operations.” Weintraub’s actions “raise questions of bias and/or prejudgment, which, in turn, implicate serious questions of due process.”

Weintraub argued she had no choice but to take such action and effectively invite government reform advocacy group Citizens for Responsibility and Ethics in Washington — in 2012, it filed an FEC complaint accusing the conservative “dark money” group American Action Network of operating as a political committee and illegally withholding the identities of its funders — to sue the American Action Network directly. Weintraub said she didn’t trust her Republican colleagues to enforce campaign disclosure laws.

“Over a difficult and frustrating decade at the commission, I have seen colleagues with a deep ideological commitment to impeding this country’s campaign-finance laws erode the public’s right to free, fair, and transparent elections,” Weintraub wrote.

The situation could send a bad message to other political actors, CREW litigation counsel Stuart McPhail said.

“People may feel that there’s no cop on the beat and that they don’t have to follow the law,” he said.

Several former FEC commissioners interviewed last week agreed that the FEC, in general, benefits from experienced agency leaders who understand the nation’s election laws and their application and are versed in managing a federal agency of roughly 330 employees.

But “at some point in the future the commission could benefit from new perspectives, new energy and a new rhythm,” said Republican Lee Goodman, who served on the FEC from 2013 until February, when he resigned to become a partner at law firm Wiley Rein.

“Commissioners who make a career out of the position are much less likely to cooperate or even attempt to reach consensus across the aisle as they are so certain of the rightness of their approach to issues given the other matters they have decided in their long careers,” said Democrat Ann Ravel, who served on the FEC from 2013 to 2017.

Early last decade, Congress limited FEC commissioners to one six-year term precisely to keep commissioners from serving indefinitely — Democratic Commissioner Danny McDonald, for example, served a quarter-century, from 1981 to 2006.

Now, “the term limits have become meaningless,” said Karl Sandstrom, a Democratic FEC commissioner who served from 1998 to 2003.

Blame President Barack Obama, Trump and Congress alike for this state of affairs.

Standard, if informal operating procedure is thus: US Senate majority and minority leaders recommend prospective FEC commissioners to the president. The president, in turn, nominates the Senate’s FEC designees. The Senate then confirms the nominees.

Obama nominated three people to the FEC: Democrat John J. Sullivan, who was slated to replace Weintraub, withdrew from consideration, while Goodman and Ravel won appointments to vacant seats. But Obama never formally floated replacements for Hunter, Walther or Petersen, and he largely fell short of realizing the lofty campaign finance reform rhetoric of his early days as a presidential candidate.

Trump could upend tradition with a tweet and nominate new FEC commissioners next hour. He could even scramble partisan orthodoxy and appoint independents or Libertarians to the commission — federal law only mandates that the commission feature no more than three members from any one political party.

But Trump has so far been decidedly Obamaesque in his indifference toward the FEC.

While Trump routinely rails against Democratic obstruction of his various executive branch nominees — “disgraceful!” — the lack of new FEC commissioners is a function of Trump failing to nominate anyone to the agency save for Texas attorney Trey Trainor. Trump first nominated Trainor, a Republican who supported Trump’s presidential campaign, more than seven months ago to replace Petersen, Trump’s failed pick for a US District Court judgeship.

The White House did not respond to several requests for comment last week and has for months refused to answer questions about the FEC.

Trump, though, is no stranger to the agency: he’s frequently opined about campaign money issues and his White House counsel is former FEC Chairman Don McGahn, an outspoken critic of campaign regulations.

Trump has also been subject to several FEC complaints, most recently involving hush money payments facilitated by Trump’s personal lawyer, Michael Cohen, to porn actress Stormy Daniels.

“It’s hard to say what’s going on at the White House, and I have no idea if [inaction] is purposefully directed at the FEC, or if it’s no one’s priority,” Weintraub said.

“No administration has done well nominating, but this administration is just doing it worse — there’s really no excuse,” said Max Stier, president and CEO of the nonpartisan Partnership for Public Service, which with the Washington Post tracks presidential nominations and rates government agencies on their workplace quality.

The FEC ranked 27 out of 28 small federal government agencies in the Partnership for Public Service’s most recent survey.

The US Senate, too, has largely ignored the FEC.

Although it oversees FEC functions, it hasn’t conducted an FEC oversight hearing in years. The Senate Rules and Administration Committee, which vets FEC nominees, has yet to even schedule a confirmation hearing for Trainor.

Sen. Roy Blunt, R-Mo., chairman of the Senate Rules and Administration Committee, and Sen. Amy Klobuchar, D-Minn., the committee’s ranking member, did not respond to several requests for comment.

Also non-responsive: Sen. Chuck Schumer, D-N.Y., who as Senate minority leader would typically offer Democratic FEC nomination recommendations to the president. Two government officials familiar with the FEC nomination process, however, say Schumer’s office has this year forwarded at least one FEC recommendation to Trump — an assertion the White House neither confirmed nor denied.

The FEC needs six commissioners willing to “faithfully” enforce the law, said Trevor Potter, a Republican FEC commissioner from 1991 to 1995 who now works as president for the Campaign Legal Center, a nonpartisan reform organization.

“With the 2018 midterms approaching in earnest, our elections are not protected,” Potter said.

The potential for foreign money in elections and enforcing disclosure rules are among critical issues squarely in the shorthanded FEC’s purview this year, Potter added.

Say the FEC, like it did in 2008, lost a quorum and couldn’t make key decisions at all. Would that be worse than the FEC in its current state?

“Yes, it would be worse,” said Weintraub, who was one of two commissioners still serving during the agency’s 2008 mothballing.

“Despite all our disagreements, we still get some things done even with the current cast of characters,” she added, noting the commission unanimously approved a draft audit report of the congressional campaign of Rep. Martha McSally, R-Ariz., and agreed to scrutinize the operations of “zombie” political committees that are no longer operational but in some cases still maintain large cash balances.

Petersen, who’s served on the FEC since 2008, says he’ll “just continue to carry out my responsibilities as long as I’m here,” a sentiment echoed by Hunter, whose chairmanship runs through 2018.

Walther, an independent who often leans left, says having two commission vacancies during an election year is “on his mind,” particularly since it means the commissioners must vote unanimously in order to take action on most matters before them.

“But we serve at the pleasure of the president,” Walther said, “and we’re here for now.”