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White House Considers Stacking the FEC to Increase Enforcement of Campaign Finance and Election Laws

By Ephraim (Fry) Wernick, Branden Stein, and Gian Gualco-Nelson*

While everyone expects the Department of Justice (“DOJ”), Securities and Exchange Commission (“SEC”) and other well-known enforcement agencies to increase enforcement under the Biden administration, few people are talking about the uptick in enforcement that appears to be coming from the Federal Election Commission (“FEC”). However, a new memorandum that has been getting attention with policymakers at the White House (“FEC Memo”) suggests that the Biden administration is considering a drastic change to the makeup of the commission, which could trigger more aggressive enforcement from the FEC.1 First published by Axios, the memo includes a controversial recommendation that President Biden defy recent norms and stack the FEC with pro-enforcement commissioners who could put teeth into FEC enforcement of campaign finance and election laws.2

Background

FEC enforcement has been notoriously lacking in recent years. Judge Christopher Cooper of the United States District Court of the District of Columbia jokingly described the FEC as “the only government agency that does exactly what Congress designed it to do: nothing.”3 These comments reflect campaign finance reform advocates’ frustration with procedural and structural restrictions that require an equitable distribution of seats on the commission. This distribution makes it difficult to obtain a majority vote on enforcement decisions, often creating a deadlocked vote that cannot be overcome. Specifically, the FEC consists of six commissioners, with no more than three from the same party (e.g., three Republicans and three Democrats), and any enforcement action requires four votes to effectuate the proposed action. Combined, these requirements can be perceived as paralyzing the FEC when ideological differences prevent commissioners from obtaining a majority vote — particularly during this very polarized time. As a result, gridlock has become increasingly common. For example, in 2006, the FEC failed to obtain four votes in only 4.2 percent of enforcement cases, whereas in 2016 — an election year — the FEC failed to obtain four votes in 37.5 percent of enforcement cases.4

The Memorandum

The current makeup of the FEC includes three Republicans, two Democrats, and one Independent, who typically votes with Democrats. However, Republican Commissioner Sean J. Cooksey and Independent Commissioner Steven Walther are scheduled to leave the commission on April 30, 2021,5 and President Biden will be called upon to find their replacements. Under existing norms, President Biden would invite Republican leadership to submit a list of candidates to replace the outgoing Commissioner Cooksey, but the FEC Memo recommends short-circuiting this process and breaking against existing norms to stack the deck with a commissioner who would likely side with Democrats on future enforcement decisions. The FEC Memo also calls for President Biden to appoint a Democrat to fill Commissioner Walther’s seat. Adopting the proposal would result in a 4–2 pro-enforcement commission that would tilt more heavily in favor of Democrats and seemingly break the existing gridlock. While the fourth commissioner may vote with Democrats, the FEC Memo argues that the appointment would not violate FECA’s cap on same-party commissioners.

The FEC Memo offers three options to execute the plan. The first option requires that President Biden consult with two nominally “Independent” senators who caucus with Democrats: Senators Angus King of Maine and Bernie Sanders of Vermont. President Biden would obtain their recommendation for another nominally “Independent” nominee to replace Commissioner Cooksey, but who could be trusted to implement their pro-enforcement agenda. The second option calls for President Biden to nominate an Independent of the same ilk, but without consulting with Senator King or Senator Sanders. The third option recommends nominating a pro-enforcement Republican who shares Democrats’ pro-enforcement philosophy to fill Commissioner Cooksey’s seat, but without consulting Republicans on who that Republican would be. The FEC Memo recommends the first option as the best course of action because it gives Independents a voice on the Commission while seeming to abide by the opposing party consultation norm.

This approach would not be unprecedented. President George W. Bush appointed Commissioner Walther, an Independent, to the commission in 2006, and President George H.W. Bush appointed Trevor Potter, a pro-enforcement Republican, to the commission in 1991. However, these appointments notably did not break from existing norms: President Bush consulted with then-Senate Majority Leader Harry Reid (D-Nevada) and obtained Senator Reid’s recommendation for Commissioner Walther to serve on the FEC, and no Republican objected to Commissioner Potter’s nomination.

The FEC Memo appropriately acknowledges that Senate Minority Leader Mitch McConnell (R-Kentucky) would strongly oppose any attempt to bypass the opposing party consultation norm. However, Democrats have a procedural advantage: while the Senate must vote on all appointments, Senator McConnell and the Republicans cannot filibuster an FEC nominee.6 Still, any attempt to circumvent existing norms would require unanimous support from Democrats, which is not certain given the seeming unfairness and blowback that could occur were President Biden to take this proposed action.

What This Means for You

The FEC Memo is just a proposal and there is no indication that President Biden intends to act on it. However, even the consideration of this proposal signals a strong willingness of the current administration to beef up enforcement of campaign finance and election law violations. In 2006, the commission brought in $5.5 million in civil penalties, whereas in 2016, the commission collected only 10 percent of that amount, or $600,000, in civil penalties.7 These statistics are particularly remarkable considering that 2006 predated the Supreme Court’s decision in Citizens United v. Federal Election Commission,8 which contributed to increased campaign finance spending amounting to over $14 billion in 2020 compared to just over $1 billion 2004.9 Increased enforcement will undoubtedly result in the imposition of more penalties by the FEC in addition to more frequent referrals for criminal enforcement by DOJ.10 Under the circumstances, it is now more important than ever for politically active companies and individuals to pay attention to these trendlines and ensure that they are in full compliance with the law. Failing to abide by disclosure and disclaimer requirements may draw increased attention from the FEC, so consult with competent counsel if you have any concerns about complying with FEC regulations or inquiries.

*Gian Gualco-Nelson is a law clerk in our San Francisco office.

1 The Biden Administration’s Immediate Opportunity to Create A Pro-Enforcement Majority on the Federal Election Commission (Feb. 1, 2021), available at https://www.documentcloud.org/documents/20510821-biden-fec-memo

2 Lachlan Markay, Biden urged to pack FEC with “pro-enforcement” members, Axios (Mar. 12, 2021) https://www.axios.com/fec-biden-campaign-finance-reform-861530cb-0bca-400b-90a3-db495175ac5b.html.  

3 Citizens for Responsibility and Ethics in Washington v. Am. Action Network, 410 F. Supp. 3d 1, 6 (D.D.C. 2019). 

4 Office of Comm’r Ann M. Ravel Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp, Fed. Election Comm’n, 2 (2017), https://shpr.legislature.ca.gov/sites/shpr.legislature.ca.gov/files/Ravel%20-%20FEC%20Dysfunction.pdf

5 Although the Commissioners’ terms are set to expire on April 30, 2021, each likely will remain in holdover status on the FEC until President Biden nominates and the Senate confirms a replacement.

6 Valerie Heitshusen, Cong. Research Serv., R43331, Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings (2013) https://fas.org/sgp/crs/misc/R43331.pdf.

7 Compare supra note iv with Press Release, Fed. Election Comm’n, 2004 Presidential Campaign Finance Activity Summarized, Fed. Election Comm’n (Feb. 3, 2005), https://www.fec.gov/updates/2004-presidential-campaign-finance-activity-summarized/

8 558 U.S. 310 (2010).

9 2020 election to cost $14 billion, blowing away spending records, OpenSecrets.org (Oct. 28, 2020, 1:51 PM), https://www.opensecrets.org/news/2020/10/cost-of-2020-election-14billion-update/.

10 See 52 U.S.C. § 30109(d)(1)(A).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.