Halloween’s over. The FEC? Still a zombie.

Introduction

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These are dark times at the Federal Election Commission, which has now gone two months without enough commissioners to enforce federal campaign finance laws. 

That’s because U.S. senators and President Donald Trump have failed to strike an agreement to fill any of three vacancies on the six-member commission that needs a quorum of at least four warm bodies to conduct most any high-level business. 

The agency therefore can’t pass new rules, pursue investigations, issue fines, even hold formal public meetings.

What does this mean for political candidates, the body politic and U.S. elections in general?

A lot, it turns out — little of it good. 

“The situation encourages chaos, and it encourages corruption,” said former Rep. Zach Wamp, R-Tenn. “Dysfunction is not the American way, and this is a national disgrace.”

Here’s what’s specifically being lost as the FEC zombie-walks into the teeth of Election 2020:

PUBLIC NOT WELCOME: Since Sept. 1, the FEC has canceled four of its public meetings. That’s on top of three public meetings the agency canceled earlier this year, including two in January because of the partial federal government shutdown. If the FEC can’t muster a quorum by mid-December, the commission will all but certainly axe another four scheduled public meetings meetings.

TRUMP GETS REPRIEVE: In June, the Center for Public Integrity reported that Trump’s re-election campaign has repeatedly refused to pay public safety bills sent by the municipal governments of cities that have hosted the president’s campaign rallies. While debate rages over whether the campaign is legally obligated to pay them, federal law appears quite clear that it should at least be reporting these bills as “disputed debt” on its periodic campaign finance disclosures. 

On Oct. 28, Rep. Bill Pascrell, D-N.J., sent a letter to the FEC demanding the agency open an investigation into Trump’s campaign for failing to disclose disputed debts. So long as the FEC lacks a quorum of commissioners, agency staff can begin work on such an investigation but commissioners themselves can’t take votes and finish it. The FEC’s state of affairs is particularly upsetting because Trump is hurting cities and should be held to account, Pascrell said by phone. 

“It’s a cheap stunt. Horrendous,” the congressman said. “Trump could pay. His campaign has lots of money. These cities should not be taken for granted. Cities are grasping for every dollar for their budgets.”

INVESTIGATIONS JEOPARDIZED: As of May 1, the FEC was grappling with a backlog of 289 cases on its enforcement docket. Of those, several dozen  contained elements that already had surpassed a five-year statute of limitations or would by May 1, 2020, the FEC acknowledged in a letter earlier this year to the U.S. House’s Committee on House Administration.

The FEC didn’t immediately respond to a question about how large the backlog is today. But it almost certainly has grown since May. And numerous cases are fated, in part or in full, to surpass the statute of limitations — and therefore, expire, without justice being served. 

In this regard, the FEC’s lack of a quorum “is going to exacerbate an already existing problem,” said former Republican FEC Chairman Lee Goodman, now a partner at the law firm Wiley Rein LLP.

Several of the cases on which the FEC hasn’t acted involve America First Action, a pro-Trump super PAC mired in the Ukraine scandal congressional Democrats are investigating as part of their Trump impeachment inquiry. 

When the FEC eventually regains a quorum, its case workload will be massive, warned former Republican FEC Chairman Michael Toner.

“It’s quite reasonable to assume that some of the more marginal cases will just be dismissed without action,” Toner said.

NO BULLOCK BUCKS? Democratic presidential candidate Steve Bullock, the governor of Montana and an outspoken campaign finance reformer, wants access to public presidential matching funds — an increasingly obsolete reserve nevertheless flush with cash (more than $393 million as of June 30) and still available to White House hopefuls who agree to certain fundraising limits. 

One problem: the FEC must vote on candidates’ requests to access these matching funds. No commissioner quorum? No vote. Bullock plans to soon file a formal presidential matching fund petition with the FEC, campaign spokeswoman Galia Slayen confirmed, but will “keep options open” if the agency can’t act. Such options could theoretically include filing a federal lawsuit or petitioning the U.S. Treasury directly.

Republican Sen. John McCain’s thirst for presidential matching funds during his 2008 presidential campaign was a key reason lawmakers and the White House ended the FEC’s only other extended loss of a quorum — one that lasted six months.

Former Republican FEC Commissioner David Mason, who along with Weintraub were the only two commissioners working during the FEC’s six-month quorum loss in 2008, said he’s not surprised history is repeating itself. 

“Sooner or later, this was bound to happen … the underlying problem is a political problem and the degree of political division,” Mason said.

BYPASS SURGERY: Political actors may considering giving up on the FEC as an arbiter of their election law-related complaints. Instead, they may seek relief in federal courts. Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog organization, indicated as much in a Sept. 16 lawsuit against the FEC.

CREW alleges that a super PAC supporting the 2016 election of now-former Missouri Gov. Eric Greitens illegally concealed the identities of its funders and that the FEC has been too slow to investigate.

If the “FEC proves unwilling or incapable of further action” on CREW’s initial complaint to the FEC — read: doesn’t have enough commissioners to function — CREW may attempt to pursue its complaint in court. “It’s an avenue that’s open,” senior counsel Stuart McPhail confirmed.

FORMAL ADVICE ON ICE: Political committees, companies, unions and even individuals may request that FEC commissioners provide them what’s called an “advisory opinion.” In essence, an advisory opinion is the FEC’s formal advice in response to a question about how to interpret federal campaign finance law.

But the FEC has so far informed three such requestors that they won’t be answering their questions any time soon. Among them: the nonprofit Government Accountability Institute, led by conservative author Peter Schweizer. The group “seeks affirmation” from the FEC that it is a “qualified journalistic entity” and is exempt from placing political disclaimers on its published work or disclosing its work as a political contribution.

In an email on Sept. 11 to FEC attorney Joanna Waldstreicher, institute attorney Larry Levy granted the agency an extension in issuing an advisory opinion, in recognition that the commission “currently doesn’t have a quorum and thus can’t author an advisory opinion.” Two other requests are in similar straits. 

INTERNAL ACRIMONY: Never the best of friends, Democratic Chairwoman Ellen Weintraub and Republican Vice Chairwoman Caroline Hunter — two of the three remaining FEC commissioners — are antagonizing one another as much as ever. 

Weintraub in September published an epic Twitter thread trolling Hunter over the disputed publication of a weekly FEC activity digest, which was slated to note Weintraub’s effort to combat foreign influence in U.S. elections.

Hunter, for her part, penned a Politico op-ed on Oct. 22 accusing Weintraub of numerous misdeeds, including “using her official position to drag the FEC into political debates in which it does not belong, to promote herself and her personal views of what the law should be, and to mislead the public.” The op-ed followed a formal request by Rep. Rodney Davis, R-Ill. — articulating similar complaints to those of Hunter — for the FEC inspector general’s office to investigate Weintraub for “potential violations of federal ethics regulations.”

And when Hunter officially assumed the FEC’s vice chairmanship this week to replace Republican Matthew Petersen, whose resignation on Sept. 1 triggered the agency’s quorum loss in the first place, Weintraub noted the occasion on Oct. 29, tweeting thusly: “Congratulations to my colleague, Caroline Hunter, on her election as Vice Chair of the @FEC for the remainder of 2019!”  

• • •

So, what’s next for the hobbled FEC — a bipartisan commission where no more than three of the six commissioners may identify with any one political party?

Hunter has straight up called on Congress to kick her out of office — along with her two other colleagues. 

“Congress and the president should take a hard look at replacing all three remaining members of the FEC, myself included, and starting fresh with a slate of six new commissioners. No one would blame them if they did,” Hunter wrote.

Weintraub, who has publicly expressed no such desire and did not respond to interview requests this week, joins Hunter and independent Commissioner Steven Walther in collectively serving 29 years past their six-year terms.

Senate Republicans say they want to appoint a slate of six new commissioners. The White House told Public Integrity in September that it wants the Senate to approve the long-pending nomination of its lone FEC nominee to date, Republican attorney Trey Trainor. Senate Democrats have recommended to the White House Wather’s executive assistant, Shana Broussard, for nomination, but the White House has yet to nominate her.  

Asked about the stalemate this week, the office of Senate Minority Leader Chuck Schumer, D-N.Y., recycled the same, vague quote it offered nearly two months ago: “Congress should address this issue quickly because we need a fully functioning FEC.” 

Schumer, as well most congressional Democrats and Democratic presidential candidates, have been conspicuously quiet about the FEC’s inability to enforce federal campaign finance laws, even as they routinely rail against what they say are the negative effects of big and secret money in politics and the legacy of the Supreme Court’s landmark 2010 campaign finance decision in Citizens United v. FEC. 

The Committee on House Administration was supposed to conduct its first FEC oversight hearing in eight years on Sept. 25. But Speaker Nancy Pelosi on Sept. 24 announced a formal impeachment inquiry of President Donald Trump, and Committee Chairwoman Zoe Lofgren, D-Calif., indefinitely postponed the hearing. Lofgren’s office now says it may be rescheduled sometime in November, but there’s no official date.

In the meantime, FEC staffers will still show up for work and get paid, attending to various duties that don’t require direct commissioner involvement, such as reviewing and processing campaign finance disclosures. Hunter predicts that the “vast majority of campaigns and committees” will “work diligently to comply with the law and file their reports accurately and in a timely manner — they will do so whether the FEC has a quorum or not.”

But former Democratic FEC Chairwoman Ann Ravel sees trouble ahead. No enforcement of campaign finance disclosure laws could mean illegal, undisclosed and even foreign money seeping into Election 2020, she said.

“This lack of urgency seems to reflect a view that many of those individuals don’t think that this very important commission, intended to preserve the integrity of the electoral process, is important enough,” Ravel said.

Added Toner, the former Republican FEC chairman: “I don’t rule out that there isn’t a quorum all the way through the presidential election.”