Rather Than Continued Stalemate, Federal Election Commission May Now Lead Way to Campaign Finance Deregulation

As we have long been expecting, Federal Election Commissioner Ann Ravel has announced her resignation from the Federal Election Commission, effective March 1. For the last decade or more, beginning with the FEC tenure of Don McGahn (now the White House Counsel for President Trump), the FEC has stalemated on the most important questions about regulation of money in federal elections. Republican commissioners have pursued a deregulatory agenda, reading the laws and regulations in ways to have fewer limits, and much less disclosure, than (I believe) a fair reading of the law would allow. As Commissioner Ravel’s parting shot, she has issued a report on the stalemates, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp. The deadlocks have allowed a lot of questionable and illegal activity to go through because the chances of FEC enforcement (or court action in the face of a deadlocked FEC) are small.

I will miss having Commissioner Ravel on the Commission—she, along with longtime FEC Commissioner Ellen Weintraub—has used every opportunity to call public attention to deadlock at the FEC and the dangers to American democracy. Commissioner Ravel went further than Commissioner Weintraub, including the infamous “male nipples” segment on the Daily Show.

I cannot begrudge Commissioner Ravel for wanting to leave an agency that is so dysfunctional, and where morale is among the lowest at any federal agency.

And yet, things may now get much, much worse with her departure.

As I explained to Eric Lichtblau in the New York Times, the departure is potentially transformative, because now President Trump can use the vacancy to break the deadlock and turn the agency  into an engine for deregulation. Here’s how:

By law, no more than three commissioners on the FEC can be of the same political party. Generally this has meant three Democrats (or commissioners siding with Democrats) and three Republicans. The President has generally given the leadership of the party in the Senate on the other side a chance to pick commissioners from that party (though there was a dispute in 2007-8 over the controversial nomination of Hans von Spakovsky to the FEC).

Suppose President Trump decides not to follow this convention (and given the fact that he hasn’t followed other conventions, this would be unsurprising) He could appoint a libertarian or independent to Ravel’s position, thereby not violating the rules about having more than three Republican appointees. Thanks to Senator Reid, there is no more filibuster of executive nominations in the Senate, so Republicans in the Senate can force this choice through. The result? Four commissioners who can now do rulemaking, advisory opinions, and take positions in litigation that will make the FEC the leader in deregulating the political process.

This would be extremely attractive to Don McGahn, who has the President’s ear, and essentially declared war on Democrats at the FEC. The only question is if Republicans in the Senate think they would pay a price from Democrats by going down this route.

Think things can’t get much worse at the FEC from the reform perspective? Think again.

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