Zero enforcement

Introduction

In a crucial election year rife with controversies and record spending, the Federal Election Commission, missing four of its six members, lacks the quorum necessary to take any action. Despite a new congressional ethics law that gave the FEC new regulatory responsibilities, the paralyzed agency has failed to provide any rulings or advisory opinions so far this year.

An analysis by the Center for Public Integrity reveals that the FEC issued an average of 36 advisory opinions and decided an average of 130 enforcement cases (“Matters Under Review” and “Alternative Dispute Resolutions”) over the past five years. Advisory opinions are “responses to questions regarding the application of federal campaign finance law to specific factual situations.” Matters Under Review (MURs) are enforcement cases the Commission attempts to resolve initially “through a confidential investigative process,” and Alternative Dispute Resolutions (ADR) constitute a series of procedures used for negotiating and resolving disputes between parties. Since the beginning of 2008, the Commission has not issued a single advisory opinion, MUR, or ADR.

Massie Ritsch, communications director at the Center for Responsive Politics, told the Center that because this will be the most expensive election in U.S. history, “we need a referee . . . to make sure everyone plays by the rules.” Even with all six commissioners in place, he noted, the FEC tends to be a “slow mover,” citing the two years it took the agency to deem behavior by 527s illegal after the 2000 election.

The Senate has not confirmed a nominee to the Commission since March 2003. Most recently, Democrats, in particular Senators Barack Obama of Illinois and Russ Feingold of Wisconsin, have blocked confirmation of Hans von Spakovsky, objecting to his record on minority voting rights during his service in the Justice Department. Republicans have retaliated by insisting that the pending nominees be voted on as a group. Via recess appointments and the holdover of commissioners whose terms had expired, the Commission was able to maintain a quorum until the beginning of January 2008.

In a letter last week to White House Chief of Staff Joshua Bolten, Democratic Majority Leader Harry Reid expressed frustration with the FEC’s hiatus. “The impasse which has deprived the agency of a functional quorum has taken the nation’s campaign finance watchdog off the beat,” he wrote. “It has prevented the full implementation of the far-reaching ethics bill enacted by Congress. This situation cannot stand.”

Calls to the office of Republican Minority Leader Mitch McConnell were not returned.