The fall 2020 election promises to be the most expensive, and possibly the most intensely fought, in American history. Without immediate federal reform, campaigns will be free to run amok. The agency in charge of oversight has gone comatose.
For the well-being of American democracy, Congress and President Donald Trump must immediately repair the Federal Election Commission.
The FEC, plagued by years of deadlock, lacks enough commissioners to open investigations or hand out penalties. This is rock bottom of a long decline.
In the Watergate era, righteous public anger demanded political accountability and transparency. Congress created the FEC to watch for illegal campaigning and mete out penalties. Today, amid election hacking, wanton disinformation, foreign interference and undisclosed campaign funding, our government leaders are failing to protect American democracy.
Its story reads as a playbook for how to doom an agency’s usefulness.
The FEC’s structure proved inadequate for modern politics. The commission is supposed to have six appointed members — no more than three from any party — and a four-vote minimum to approve action, to ensure bipartisan fairness. But as America’s partisan divide has deepened, the FEC tended toward party-line deadlock. A report this spring from the Brennan Center for Justice written by a former FEC counsel found FEC commissioners deadlocked on 37.5% of decisions in 2016, compared to 4.2% of votes in 2006.
A one-term limit for commissioners imposed in 1997 worsened the situation. Instead of continually refreshing the commission, this gave politicians power over the agency. Congress and Presidents Trump and Barack Obama each abandoned their responsibility to install new commissioners. Under FEC rules, this enabled the incumbents to remain commissioners after their single term’s end date.
An August resignation reduced the FEC to just three commissioners, all past due to leave. This is not enough to do business. The watchdog is too starved to bark.
The Brennan Center report proposed a series of structural and technical changes to get the FEC working. They include reducing the commission to five members, with one required to be a political independent — such as a former judge or FEC staffer — and reforms to the replacement and enforcement mechanisms.
Most were incorporated in the sweeping political-reform bill H.R. 1 that the Democratic House passed. It has little hope of passing the Republican Senate.
To give the FEC a better shot at revival, structural agency reforms must be proposed in a separate bill both parties can work on.
“This shouldn’t be a partisan issue,” said Daniel I. Weiner, the author of the Brennan Center report. “When you work in politics you want to know what the rules are. Democrats, Republicans, it doesn’t matter. When you’ve got an agency riven by discord, they don’t provide guidance.”
Gig Harbor Democratic Rep. Derek Kilmer has taken a lead role on FEC reconstruction and said he sees significant bipartisan support.
While the legislation develops, the Senate must follow through immediately on statements it will work with President Trump to seat a full slate of commissioners. American elections need oversight like no other time in our history.