We find ourselves at the official-unofficial start of the campaign season, which lends itself to an appropriate topic: The Federal Election Commission (FEC). The FEC is an independent agency of the U.S. government and is charged with enforcing U.S. campaign finance laws and overseeing federal U.S. elections. Its responsibilities are described as: “to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.”
History
The need for campaign finance reform and an independent regulatory agency was identified by President Theodore Roosevelt (R-NY) in 1905. Numerous legislative actions were taken between 1907 and 1966, with most of those actions resulting in their repeal. The FEC was formed in 1974, pursuant to the Federal Election Campaign Act (FECA), where lawmakers identified the need for a body to enforce and regulate campaign finance law. At the time, its six-member panel was appointed by both chambers of Congress and the president. Two were selected by the president pro tempore of the Senate, two by the Speaker of the House – each with recommendations from the chambers’ minority and majority leaders – as well as two by the president.
However, the 1976 Supreme Court decision in Buckley v. Valeo found that the FEC Commissioners were “Officers of the United States” under the Appointments Clause of the U.S. Constitution, requiring the president to nominate commissioners and the Senate to confirm them, exactly how most presidential Cabinet members are confirmed.
In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), which banned national parties from raising and spending soft money, added restrictions on advertisements on issues, and increased federal contribution limits.
In 2010, campaign finance laws received another massive overhaul in the form of Supreme Court cases Citizens United v. FEC and SpeechNow.org v. FEC. The ruling in the former case allowed corporations and unions to fund ads created independently from the campaign, while the latter ruling allowed the formation of Super Political Action Committees (PACs).
In 2012, McCutcheon v. FEC struck down limitations on individual contributions, no longer relegating individual donors to a set amount of candidates and parties to whom they could contribute in an election cycle.
Composition
Each commissioner serves a six-year term, but each term ends on April 30. Term limits are attached to the seat rather than the incumbent. The terms are staggered; thus, two commissioners are appointed every two years. The Chair of the commissioner rotates on a yearly basis, with no commissioner serving as chair more than one during a six-year term. Commissioners may serve more than once as chair if they serve beyond their term and no successor is appointed. Commissioners continue to serve their terms until a replacement is confirmed. This is to ensure a quorum of commissioners, as a body as small as the FEC could be kneecapped if Congress were to intentionally or unintentionally delay a president’s nominee.
By law, no more than three commissioners can represent the same political party. Also by law, four votes is considered a quorum and is required for any official action of the commission. The purpose of this feature is to prevent partisan control of what’s intended to be an independent body. The commission meets in closed sessions to discuss information that are legally required to remain confidential. Meetings that are held to develop policy and/or vote on legal and administrative matters are public.
Sean J. Cooksey (R) has served as Chair of the FEC since January 1, 2024. He was appointed in 2020 by Donald Trump (R-FL). Appointed to fill the 2018 resignation of Lee E. Goodman, Cooksey’s term expired in 2021. A replacement’s term would expire April 30, 2027.
Ellen Weintraub (D) serves as Vice Chair and has served as a commissioner since December 9, 2002, appointed by George Bush (R-TX). Her term expired in 2007. A replacement’s term would expire in 2025.
Trump appointed three other commissioners: James E. Trainor III (R), Shana M. Broussard (D), and Allen Dickerson (R). All were appointed between June and December 2020 and the former two commissioners’ terms have expired as of 2023. Their replacements’ terms would expire in 2029. Dickerson’s term expires in 2025.
Joe Biden’s (D-DE) only appointment to the FEC comes in the form of Dara Lindenbaum (D). She was appointed in 2022 and her term expires in 2027.
Oversight
The FEC enforces federal campaign finance laws, limitations and prohibitions on contributions and expenditures, the reporting system for campaign finance disclosure, investigates and prosecutes violations, audits campaigns, and administers public funds for presidential elections.
Under the presidential public funding program, eligible candidates can receive federal funds to pay for qualified expenses of their primary and general election campaigns. Tax dollars match the first $250 of each contribution from individuals that a candidate receives during the primary and funds a major party’s nominee’s general election campaign.
An eligible candidate is one who has raised more than $5,000 in at least twenty states – collectively at least $100,000. Candidates must also agree to limit spending primary elections combined to $10 million plus the difference in the price index. Candidates must also limit campaign spending in each state to $200,000 plus the difference in price index, or to a specified amount based on the number of voting-age individuals in the state, whichever is greater. State limits in 2024 range from the lowest in Wyoming – $1.2 million – to California – $30.1 million.
This is just one of the programs that the FEC administers, monitors, regulates, and investigates (if necessary).
The FEC also submits its reports on how much federal campaigns have raised and spent. Donors who give more than $200 each have their names, addresses, employers, and job titles logged in said reports. The database goes back to 1980.
The FEC is also the de facto starting point for federal campaigns, president, House, and Senate. The commission requires that a candidate report his or her finances once he or she has raised or spent $5,000 for the purpose of the campaign. The candidate then has fifteen days to register with the FEC and designate an official campaign committee to monitor funds and expenditures for the campaign. Committees must have an official treasurer and cannot support any candidate besides the one for whom it is registered.
Candidates then submit detailed financial reports to the FEC every quarter. Such reports are publicly available on the FEC’s website and are often used as tools in prognosticating a candidate’s potential electoral success.
The FEC’s oversight also extends to much smaller matters that might set precedent for the future. In 2018, Liuba Grechen Shirley (D-Amityville) ran against then-Congressman Peter King (R-Seaford) in NY-02, now represented by Andrew Garbarino (R-Bayport). Grechen Shirley used campaign funds to pay a caregiver for her two young children. The FEC ruled that candidates can use campaign funds for childcare costs as a result of time spent campaigning. Grechen Shirley became the first woman to receive approval to spend campaign funds on childcare.
Deadlocks
The commission has been heavily criticized for its alarmingly-high rate of deadlocks. As an evenly-divided board in terms of numbers and partisanship, the FEC can deadlock relatively easily, and since a four-vote minimum is required to permit action by the commission, some items and initiatives can simply die on the table. From 2008 to 2014, the FEC had a 14% deadlock rate, accounting for over 200 tie votes.
A famous example of FEC deadlocks include the 2021 inquiry over Donald Trump’s payments to adult film actress Stormy Daniels and whether the payment violated federal campaign laws during the 2016 presidential election. The 2-2 decision by the FEC, evenly-divided between Democrats and Republicans, produced no further action, resulting in a closed inquiry. Allen Dickerson, then Vice Chairman, recused himself, and Independent Commissioner Steven Walther did not vote.
More recently, the FEC deadlocked over a June 2023 request to create guidelines for campaign advertisements using content generated by Artificial Intelligence (AI). The vote failed in a 3-3 tie, with Republicans voting against the request and Democrats voting for it. Commissioner Dickerson argued that the FEC did not have the authority to regulate AI-generated advertisements.
Further Criticisms
Apart from its tendency to deadlock with no other recourse, the FEC has faced additional forms of criticism over the years.
Some have accused the commission of capitulating to regulatory capture, in which a regulatory agency falls to the interests of those whom it is supposed to regulate, mainly by acting as an arm of parties, politicians, and interest groups through its rulings. The bipartisan structure of the committee has also earned it accusations of being “toothless,” further substantiated by deadlocks with little to no forms of appeal.
Another criticism of the FEC is more endemic to the short time spans for which campaigns last, rather the actions or inactions of the commission. Based on its Congress-approved structure, the FEC must follow certain steps and procedures when investigating a complaint. Defendants must respond to the complaints, the FEC must heavily investigate and analyze the complaint, followed by legal procedures if necessary. The time it takes for the FEC to conduct its business usually well elapses the duration of the campaign. Should a candidate under investigation by the FEC win his or her election and assume the seat, the FEC’s work will likely be done long after said candidate is seated.
The FEC has also been criticized for potential First Amendment right violations. The FEC’s role in this became prominent towards the end of the Obama Administration, in which the FEC deadlocked on votes to regulate social media platforms used for political speech. Additionally, the FEC deadlocked on a vote whether to punish Fox News for its selection criteria it used in an August 2015 Republican primary debate. FEC Democrats reacted to the network’s decision of dividing the historically large field of Republicans into two debates, with the low-polling candidates debating in a separate program. The complaint was filed by Mark Everson (R-MN), a dark-horse candidate for president that year who was not invited to said debate. He claimed those changes were effectively an illegal corporate contribution to the high-polling candidates.
