FEC lays bare internal conflicts and challenges in letters to Congress

Introduction

The Federal Election Commission’s four leaders are offering lawmakers clashing perspectives on the agency’s very purpose.

The FEC’s greatest challenge to fulfilling its mission is a misperception that “adherence to the rule of law and sensitivity to Americans’ First Amendment rights reflect hostility towards enforcing the law or, even, toward the Commission itself,” Republican commissioners Matthew Petersen and Caroline Hunter wrote.

Chairwoman Ellen Weintraub, a Democrat, took the opposite view, arguing the FEC has been “severely challenged from the inside by a group of commissioners who harbor ideological opposition to the very nature of the agency and the law we are charged with enforcing.”

The FEC commissioners’ comments are part of 171 pages’ worth of responses to dozens of questions Committee on House Administration Chairwoman Zoe Lofgren, D-Calif., sent the FEC on April 1.

The Center for Public Integrity on Thursday obtained the FEC responses, dated May 1, from the Committee on House Administration. Commissioners at the FEC — an independent, bipartisan agency tasked with enforcing and regulating federal campaign finance laws — had refused the Center for Public Integrity’s requests to review their responses.

Lofgren has openly doubted the FEC’s ability to function as the agency struggles with deadlocked votes, internal conflict, chronic vacancies and low morale. Her inquiries come at a time when “dark money” and the specter of foreign election influence have captured the attention of the public amid historically long and expensive federal campaign seasons.

The FEC’s commissioners responded to Lofgren’s questions jointly, but Weintraub and independent Commissioner Steven Walther also sent individual responses to some of her questions. Petersen and Hunter issued separate, joint responses to Lofgren’s queries about “deadlocks” and the FEC’s greatest challenges to fulfilling its mission and mandate.

Together, the four FEC commissioners acknowledged a significant backlog in open cases involving alleged or suspected violations of election law.

The responses revealed that the FEC had 289 unresolved cases on its enforcement docket as of May 1, some of which date to the 2012 election cycle. Of those, 45 cases contain elements that have either exceeded, or will soon exceed, a five-year statute of limitations for acting on them.

The backlog will be addressed “through both increased productivity and the continued implementation of certain systemic reforms,” the FEC commissioners wrote the Committee on House Administration. Weintraub, the chair, has committed to scheduling more meetings this year.

On the issue of illegal coordination between political campaign committees and unconnected political groups, the FEC said it had not once penalized any entity for illegal coordination since the Supreme Court’s landmark 2010 decision in Citizens United v. FEC, which allowed corporations, labor unions and certain nonprofits to spend unlimited amounts of money to advocate for and against politicians — and gave rise to super PACs. The FEC did, however, state that it has “found reason to believe a violation occurred in another matter which remains pending.”

Just this week, President Donald Trump’s re-election campaign endorsed a supportive super PAC, igniting a debate over whether such a declaration is legal.

The commissioners separately acknowledged that the FEC’s lack of an inspector general and deputy inspector general — the agency’s internal watchdogs — has delayed or jeopardized internal audits, investigative reports and inquiries into allegations of administrative or criminal misconduct at the agency.

Commissioners also noted that in addition to several high-profile FEC vacancies, including two of six commissioner positions, other key jobs are being filled on an “acting” basis. Among them are the FEC general counsel, human resources director and several top legal positions. This situation “has a ripple effect on other positions within the agency,” the commissioners wrote.

Addressing chronically low staff morale, as determined by an annual survey of federal employees, FEC commissioners said the latest such survey indicated an increase in morale and employee satisfaction, sparked in part by management training and the agency’s move in early 2018 to a new headquarters building.

Commissioners also chided Congress for causing a few of its problems. Commissioners have repeatedly asked lawmakers to authorize pay increases for people serving as FEC general counsel and staff director, and Congress’ failure to do so has made those positions difficult to fill, commissioners said.

The FEC hasn’t has a permanent general counsel since 2013, and the staff director, Alec Palmer, simultaneously works as chief information officer, which allows him to earn a larger salary than he would otherwise.

While agreeing on these matters, commissioners’ individual responses to Lofgren illustrated deep ideological divisions among them.

Petersen and Hunter argued against the notion, often pushed by Democrats and advocates for strict campaign finance regulations, that the FEC is a dysfunctional body.

“Unfortunately, disagreements among Commissioners are often mischaracterized as ‘dysfunction,’ rather than accepted as a natural consequence of the Commission’s unique structure and mandate,” they wrote, stressing that Congress designed the agency so “no single political party or administration can dominate the Commission’s decision making, subpoena power, or rulemaking authority, and that no single viewpoint will automatically prevail.”

While some bills introduced in Congress call for the FEC to feature five commissioner positions instead of the current six — thereby ensuring clear votes on cases before them — Walther advocated against such a change.

“There is greater wisdom in retaining the structure that exists now … if this were not the case, there could very well be accusations of partisan motives, whether or not justified, based upon one’s view of the political leanings of the ‘tie-breaking’ Commissioner,” Walther wrote.

Weintraub, for her part, didn’t specifically address whether the FEC’s commissioner composition should change, but she nevertheless bemoaned what she considers habitual obstruction by Hunter and Petersen.

“The ratchet only goes one way. There is no leverage — ever — for anyone who wants to vigorously enforce the law. The advantage always falls to those who want to do less,” Weintraub wrote. “We are rarely able to find four votes to pursue most matters of any substance. We are unable to find four votes to pass regulations to respond to the vast changes in the campaign-finance landscape over the past 11 years, especially since Citizens United.”

Illustrating that point is was the FEC’s statement to Lofgren about how commissioners act when faced with appealing a court ruling against the FEC: Over the past decade, it hasn’t once managed to muster the four affirmative votes required to do so.

Trump has failed to nominate people to fill the FEC’s two empty commissioner positions. Democrat Ann Ravel resigned in March 2017 and Republican Lee Goodman resigned in February 2018.

The FEC must achieve four votes to take an affirmative action on most matters before it. Therefore, the commissioner vacancies have forced the agency’s four remaining commissioners to vote unanimously to approve new regulations, fine political committees and provide official rulings. Were any of the four current commissioners to resign or be unable to work, the FEC would lose a quorum and couldn’t conduct votes and other high-level duties at all — a shutdown-like situation that last occurred in 2008.

Meanwhile, the FEC’s four remaining commissioners have now collectively served 36 years past the expirations of their six-year terms and remain in their jobs through what’s known as “holdover” status.

Trump has only floated one FEC nominee — Texas attorney and Trump campaign supporter Trey Trainor. Trainor is slated to replace Petersen, but the U.S. Senate has not given Trainor a hearing. Trump has offered no nominees to replace Weintraub, Hunter or Walther.

Lofgren’s office in April said the Committee on House Administration plans to conduct an oversight hearing on the FEC later this year, although it has not yet scheduled a date.

If it occurs, it’ll be the first time since 2011 that the U.S. House has conducted an FEC oversight hearing. The U.S. Senate has not conducted one since 2004.