In recent years, the commission has deadlocked on a majority of its votes.
Created in 1975 in reaction to the Watergate scandal, the Federal Election Commission (FEC) is an independent regulatory agency dealing with campaign finance.
By law, the commission has six members, nominated by the president and confirmed by the Senate to serve staggered terms. As an intended bulwark to partisanship, no more than three of those six members can be affiliated with the same political party. Currently, the commission has three Republicans, two Democrats, and one independent.
That full slate of six commissioners has only existed relatively recently, though. From March 2017 to December 2020, the commission never stood at its full six members. During times when they had four or five members, that still constituted a “quorum,” which legally allows the commission to make decisions.
At times during that period, though, the commission dropped as low as three members, falling short of the four member minimum to make any legally binding rulings. With the commission legally handicapped for so long, they faced a backlog of 446 matters before the agency and 275 staff reports awaiting decisions once they returned to a full slate last December.
So not only was the commission legally prevented from doing anything a fair amount of the time, but even when they could do things, the current even-numbered member structure combined with increasing partisanship to dramatically increase the number of deadlocked or tied votes. An FEC deadlock used to be a rare occurrence, but from 2012–19 they deadlocked in 50.6 percent of votes — a majority.
What the legislation does
The Restoring Integrity to America’s Elections Act would lower the FEC’s membership in a bid to break these deadlocks.
The commission would stand at five members, down from six. No more than two members could be from the same political party, down from three. And three members would now constitute a quorum, legally allowing the FEC to conduct business, down from four.
What supporters say
Supporters argue that the government’s main regulatory body on the subject of campaign finance has been hamstrung for much of the past several years, even as the 2020 elections were the most expensive in history.
“The [FEC] was set up to be the referee, tasked with blowing the whistle on politicians and groups that cheat and undermine the interests of ‘We the People,’” Rep. Kilmer said in a press release. “Unfortunately, in recent years, the ref often hasn’t even been on the field, with the Commission often seeming more dysfunctional than even Congress.”
“It’s time to get the referee back on the field. That’s what this bill is about,” Rep. Kilmer continued. “Meaningful, substantial reforms at the Commission need to happen so it can get back to weeding out campaign finance abuse and holding those who skirt the rules accountable.”
What opponents say
Some opponents argue that the FEC’s deadlocked votes served not as a reason to reform the commission’s structure, but rather to eliminate it entirely — not on deregulatory grounds, but rather on regulatory grounds.
The FEC “does not fulfill the role that politicians claimed it would when it was created,” read an anonymous note published in the Harvard Law Review. “By failing to do its job, it exacts a high opportunity cost, occupying a space in the regulatory landscape that could be filled by more motivated and functional actors and serving as an exonerating idol for opponents of reform, who can argue that a lack of action demonstrates that all is well in our campaign finance system.”
“All is not well, and reformers would be better off giving up on the FEC. Others have argued for eliminating the FEC on the ground that political spending should be less regulated… Eliminating the FEC may be the best way to save such regulation,” the note continued. “Eliminating the agency might be the best way to achieve its ostensible goals. The FEC’s work is important, and that the agency should not be left to wither, but recommends instead that it be ripped out at the root.”
Odds of passage
Rep. Kilmer’s prior 2019 version attracted a larger 16 bipartisan cosponsors, 14 Democrats and two Republicans, but never received a vote in the House Administration Committee despite being controlled by Democrats.
The Senate version has attracted one Democratic cosponsor, and awaits a potential vote in the Senate Rules and Administration Committee.
Why almost entirely Democratic cosponsorship? When the FEC deadlocks or is unable to muster a quorum, the lack of according regulation is generally perceived to help Republicans on the campaign finance front. For example, 2010’s campaign finance deregulatory Supreme Court decision Citizen United v. FEC allowed the creation of Super PACs, which tend to give more money to conservative causes.
The bill was also incorporated into the 886-page For the People Act, Democrats’ bill tackling campaign finance and voting rights. The House passed the larger bill by 220–210 on March 3, with Republicans unanimously opposing and all but one Democrat — Rep. Bennie Thompson (D-MS2) — in favor.
Despite supporting that one specific provision regarding the FEC, Rep. Fitzpatrick voted against the overall For the People Act, suggesting it should be called the For the Politicians Act and proposing several other reforms instead that he thought could accomplish similar goals.