WASHINGTON — Even before the coronavirus pandemic hit the United States and forced millions of Americans to stay at home, the top floor of the Federal Election Commission was quiet. Three of the six commissioners’ offices sat empty. Stacks of green paper accumulated, detailing hundreds of enforcement matters on which the agency was powerless to act.
The commission, America’s election watchdog, has essentially been on ice for months. There are six seats on its board, and the bylaws require at least four to be occupied for the agency to function. But the board has had just three members since last September. As the 2020 election has ramped up, the independent regulator has been unable to hold hearings, offer advice to campaigns about how to follow the law, open or close investigations, or issue penalties.
That changed on Tuesday when the Senate confirmed a fourth member: James E. Trainor III, a Republican lawyer from Texas. President Trump’s nomination of Mr. Trainor, who goes by Trey and who worked for the 2016 Trump campaign, marked a departure from the tradition of presidents nominating commissioners in pairs, typically from different parties.
While some cheered the symbolic revival of the agency, others criticized what they called underlying structural problems at the F.E.C. — along with a less vigorous approach to enforcing election law — that have delivered a de facto win to campaign finance deregulation over the last decade.
Even with four commissioners, the body may end up frequently deadlocked, given that taking action will require unanimity among the four: two Republicans, one Democrat and an Independent who largely aligns with the Democrat.
“I think there’s some nod to ‘Gee, it’s not good in an election year to not have an agency that obviously can’t function legally because it doesn’t have the right number of commissioners,’” said Trevor Potter, a Republican and former chairman of the Federal Election Commission who runs the Campaign Legal Center. “But it doesn’t solve the problem just to give it a quorum so they can deadlock.”
The agency, which was created in 1974 in response to the Watergate scandal, will resume its full duties in the middle of an election in which vast sums of money are being raised and spent, and at a moment when concerns of foreign interference, oblique super PACs and the accountability of candidates to big donors loom large.
Over the decades, the agency has balanced regulation and enforcement of the law with administrative duties, policing limits on campaign contributions, publishing campaigns’ financial disclosures, and investigating potential illegal spending by candidates.
Campaign finance laws were tied to the Justice Department’s recent criminal charges against two Soviet-born businessmen — associates of Mr. Trump’s personal lawyer Rudolph W. Giuliani — as well as to the 2018 conviction of Mr. Trump’s former personal lawyer Michael D. Cohen.
But on many high-profile civil matters in recent years, the election commission has been split on how to proceed.
“There has been this ideological divide on this commission that’s been particularly sharp since 2008,” said Ellen L. Weintraub, a Democratic commissioner of the agency since 2002. Ms. Weintraub overlapped at the F.E.C. with Donald F. McGahn II, Mr. Trump’s former White House counsel, who served as a commissioner from 2008 to 2013 and has been a forceful proponent of deregulation.
“The Republican commissioners were, in my view, hostile to enforcing the campaign finance laws at all,” Ms. Weintraub said of the dynamic over the last dozen years. She said the Republicans’ philosophy was not partisan but rather reflective of a broad disinterest in investigating, regardless of the political party of a candidate.
Caroline C. Hunter, a Republican commissioner who was confirmed in 2008 and is the agency’s current chair, said in an interview Monday that she and fellow Republicans like Mr. McGahn had simply shared a conservative view of the law.
“Democrats didn’t like it because it didn’t match their overly regulatory, heavy-handed, anti-First Amendment reading,” Ms. Hunter said. “To the extent that there’s ambiguity, my colleagues on the commission want to enforce the law. We refuse to push the bounds.”
In a confirmation hearing earlier this year, Democrats pressed Mr. Trainor to recuse himself from all potential matters concerning the Trump campaign; Mr. Trainor declined to commit to such a “blanket recusal,” saying he would consult an ethics lawyer on relevant matters as they arise.
Senator Roy Blunt, Republican of Missouri and chairman of the Committee on Rules and Administration, which advanced the nomination, praised Mr. Trainor’s confirmation as one that would “restore partisan parity at the commission, in addition to giving the commission a critical fourth vote in order to conduct its business.”
Mr. Trainor’s three colleagues at the F.E.C. have been serving on terms that expired years ago, but they are permitted to continue on until the president and the Senate replace or renominate them.
Unable to conduct investigations or impose penalties over the last nine months with too few commissioners, the agency has continued to process robust financial disclosures detailing how much candidates have raised and spent this election cycle. With Mr. Trainor in place, it will again be able to hold public meetings, which it last did in August 2019.
The commission will also be able to vote on how to respond to pending lawsuits against the F.E.C. Its inability to do so this spring prompted a federal judge to take the extraordinary step of issuing a default judgment against the agency in a case.
The F.E.C. will also be due to address a backlog of recommendations from its staff lawyers, who have continued their work over the past nine months and briefed the three commissioners monthly.
“We have 350 matters on our enforcement docket — that’s a lot,” Ms. Weintraub said Monday, noting that 227 matters awaited votes and that the five-year statute of limitations was ticking down on some cases and jeopardizing the ability of the F.E.C. to pursue them.
“We’ve got our work cut out for us,” she said. “We need to have a functional commission, and it remains to be seen whether merely having four commissioners will get us there.”
Mr. Trump’s decision to nominate only Mr. Trainor provoked criticism from Democrats like Senator Amy Klobuchar of Minnesota who said the president had broken precedent by not putting forward two nominees. “It is unacceptable that Republicans are abandoning the tradition of advancing nominees in bipartisan pairs,” said Ms. Klobuchar, who argued against Mr. Trainor’s confirmation on the Senate floor on Tuesday.
Some lawmakers have proposed sweeping changes to the agency. In 2019, the House passed a bill that would, among other things, establish an odd number of five commissioners, to prevent deadlock, and create an advisory panel of retired federal judges, election lawyers and members of law enforcement to recommend potential commissioners to the president. That bill has stalled in the Senate.
“The reality is, the F.E.C.’s bipartisan structure doesn’t work anymore, because the parties are so polarized,” Daniel I. Weiner, deputy director of the Brennan Center’s Election Reform Program, said.
Mr. Potter, the former Republican commissioner, called the deadlock dynamic “a clear decay of the institution and the norms,” adding, “John McCain used to say that we’ll have real reform after we’ve had the next colossal scandal.”
Another former Republican commissioner, Bradley A. Smith, urged the White House and the Senate to nominate and confirm two more commissioners, filling all available seats to allow the agency to function properly.
“There’s no room for compromise right now,” he said of the four-person commission in an interview. “I’m a small government guy, and I’ve been critical of a lot of the F.E.C.’s mission. But it is its mission — Congress has given it — so it ought to be operable.”
Source: Elections - nytimes.com
