New data and analysis from the Brennan Center show that the deadlocked Federal Election Commission has failed to provide guidance to candidates, parties, and others seeking to understand their legal obligations; update regulations to reflect changes in the law; or investigate allegations of serious legal violations. Fixing the FEC: An Agenda for Reform demonstrates that the commission’s breakdown has left American elections more vulnerable to foreign interference and otherwise exacerbated the effects of the Citizens United decision. The report pinpoints the causes of the FEC’s dysfunction — an organizational structure that creates partisan deadlocks and a lack of accountability for key management decisions — and makes recommendations for reform.
“FEC paralysis has made the impact of Citizens United worse than it should have been, endangering American sovereignty,” said Daniel Weiner, author of Fixing the FEC, a former senior staffer at the Federal Election Commission, and senior counsel at the Brennan Center for Justice at NYU Law.
“Due in large part to the commission’s inaction, more than $1 billion in dark money has poured into federal elections — one of many avenues that a foreign government can use to meddle in our campaigns. Citizens United greenlit unlimited corporate spending on campaigns, but the court assumed that the sources of this spending would be fully disclosed to the public. For that to happen, the FEC would need to update its disclosure rules and enforce those on the books. Nine years later, the commission has done neither.”
In Fixing the FEC, the Brennan Center provides new data on the impact of partisan gridlock on the commission’s responsiveness to candidates, parties, and other political actors seeking guidance about their legal obligations through the advisory opinion process.
In a review of all 1,996 requests for advisory opinions the commission received between 1975 and 2018, the Brennan Center report found a steep decline in responsiveness. In the first 32 years of its existence (1975-2007), the commission deadlocked — that is, failed to respond to at least one question — on 4.9 percent of requests per year, with a number of years featuring no deadlocks. Since 2008, the annual deadlock rate has jumped to 24.1 percent. While the FEC has been able to produce advisory opinions on straightforward and routine matters, requests stuck in deadlock cover novel or controversial issues, such as whether candidates can appear in super PAC ads and how political action committees can use Twitter.
Like the advisory opinion process, the commission’s rulemaking has also ground to a halt, as Fixing the FEC explains. For instance, a routine proceeding to update disclaimer rules for types of ads used by Russia to meddle in the 2016 presidential race remains stalled. More than nine years after Citizens United, the FEC hasn’t amended its regulations to account for super PACs. In fact, the term “super PAC” doesn’t appear in any of the commission’s rules.
“The FEC, in its current state, is doing the opposite of what our democracy requires. Its dysfunction hurts those who are trying to follow campaign finance law while making it easier for those who would rather ignore it,” said Weiner.
The FEC’s deadlocks have also prevented investigations of numerous alleged campaign finance law violations. According to 2017 findings by then-Commissioner Ann Ravel, the annual percentage of enforcement cases in which the commissioners deadlocked on at least one alleged violation increased to 37.5 percent in 2016 from 4.2 percent in 2006. In that period, the money collected by the FEC for civil penalties fell from $5.6 million to $595,000.
The Brennan Center’s Fixing the FEC proposes reforms to stop the deadlocks and create accountability for management decisions. In the current structure, the commission can’t issue an advisory opinion, enact a regulation, start an investigation, or take any other substantive action without four votes among its six commissioners. The six commissioners are evenly divided between the two major political parties and repeatedly deadlock along party lines. Fixing the FEC recommends such reforms as:
Change the composition of the FEC to an odd number of commissioners, with at least one political independent;
Redesign the role of the FEC chairperson to become the commission’s chief administrative officer and establish accountability for management decisions;
Overhaul the agency’s civil enforcement process to make it timelier and to provide an effective legal remedy for complainants and alleged violators to obtain legal clarity if the commission fails to act on an enforcement complaint within one year;
And end the practice of allowing commissioners to remain in office indefinitely after their terms expire.
Several of the reforms outlined in Fixing the FEC are part of the For the People Act, an omnibus democracy reform package passed in March by the House of Representatives as H.R. 1 and introduced later that month in the Senate as S. 949.