Federal Election Commission to effectively shut down. Now what?

Introduction

Federal Election Commission Vice Chairman Matthew Petersen announced his resignation today. 

This means the agency that enforces and regulates the nation’s campaign finance laws will effectively shut down — something that hasn’t happened since 2008 — because it won’t have the legal minimum of four commissioners to make high-level decisions.

Petersen’s resignation, first reported by the Washington Examiner, will throw the FEC into turmoil for weeks — and perhaps months — as the nation enters the teeth of 2020 presidential and congressional elections.

For now, the FEC can’t conduct meetings.

It can’t slap political scofflaws with fines.

It can’t make rules.

It can’t conduct audits and approve them.

It can’t vote on the outcome of investigations.

And while staff will continue to post campaign finance reports and attend to day-to-day functions, the commission itself can’t offer official advice to politicians and political committees who seek it.

“Despite the lack of quorum, I expect to be fully occupied while at the commission reviewing case files and preparing for new members to join the commission,” said FEC Commissioner Caroline Hunter, a Republican, who described Petersen as a “true gentleman-scholar.” 

Hunter added that the agency’s various divisions “will still be on the job, answering questions, litigating cases, maintaining our website, conducting ongoing audits and processing complaints, disclosure reports, and other filings.”

FEC Chairwoman Ellen Weintraub, a Democrat, did not address the FEC’s loss of a quorum in a statement to the Center for Public Integrity, instead echoing Hunter’s praise of Petersen. “For 11 years, [Petersen] has been a  gracious and steady colleague on the commission.”

Update, 2:56 p.m. Aug. 26: In a follow-up statement, Weintraub vowed that the FEC would attend to its duties to the best of its ability, despite losing a quorum of commissioners. “The FEC will still be able to shine a strong spotlight on the finances of the 2020 campaign.” 

“Throughout my service, I have faithfully discharged my duty to enforce the law in a manner that respects free speech rights, while also fairly interpreting relevant statutes and regulations and providing meaningful notice to those subject to FEC jurisdiction,” Petersen wrote to President Donald Trump this morning in a resignation letter.

Trump in September 2017 nominated Petersen to a federal district judgeship, but Petersen withdrew in December 2017 after a disastrous confirmation hearing — and has remained at the FEC until now. Update, 10:57 a.m. Sept. 5: Petersen has joined the law firm Holtzman Vogel Josefiak Torchinsky PLLC.

A long time coming

This is a de facto FEC shutdown more than two years in the making and something for which commissioners have long been girding. 

The FEC has operated with a bare minimum of four commissioners for the past year and a half: Democrat Ann Ravel resigned in March 2017 and Republican Lee Goodman resigned in February 2018. 

The four remaining commissioners have together served more than 37 years past the expiration of their six-year terms. That’s because federal law allows FEC commissioners to continue serving in “holdover status” until the president nominates, and the Senate confirms, someone to replace them. 

Consider the case of Weintraub, D, whose term expired in 2007. Presidents George W. Bush, Barack Obama and Donald Trump each failed to nominate someone to replace her, so Weintraub has continued to serve. She is still joined on the FEC by remaining commissioners Hunter and independent Steven Walther.

No more than three FEC commissioners may identify with any one political party. And the president of the United States alone has the power to nominate commissioners to the six-member FEC.

Trump has so far made a single nomination: Trey Trainor, a Trump-supporting Texas attorney and Republican. Trump first nominated Trainor to the FEC in September 2017. Since then, Trump has twice renominated Trainor after the U.S. Senate failed to grant Trainor a confirmation hearing.

The U.S. Senate has yet to take action on Trainor’s nomination. He would fill the seat Petersen says he’ll vacate Aug. 31. 

The U.S. Senate has long observed a tradition in which the president nominates FEC commissioners in pairs — one Republican, one Democrat, one reason Trainor’s nomination may have stalled. 

The White House has repeatedly declined to answer questions about the FEC, which for years has been marked by internal discord and deadlocks.

While FEC commissioners often toil in relative anonymity, a few achieve high profiles.

Former Republican FEC Chairman Trevor Potter, for example, served as Sen. John McCain’s 2008 presidential campaign general counsel — then made regular appearances earlier this decade with comedian Stephen Colbert, who had a long-running gag about super PACs and secret political money.

Another former FEC chairman, Don McGahn, became Trump’s 2016 campaign general counsel.

After Trump won the election, McGahn — long an advocate of a weak FEC and campaign finance deregulation, in general — served until late 2018 as Trump’s White House counsel.