Rick Hasen suggests that Mr. Trump could now break the agency deadlock and add a libertarian voice to the agency, creating a majority for active deregulation without violating the rule against one party holding more than half the seats. Once in the past, in the Carter Administration, a president tried a move like this and it did not end well. Maybe in this more deeply polarized time, the outcome would be different. But here again, Mitch McConnell would have a say in the matter, and it would be surprising if he supported this provocative maneuver, which would be mostly a distraction. The FEC is not much of a problem for the Republicans: Deadlock has worked well enough for them.
So why bother to take on this new fight? How much more could the FEC not do?
But if the Republicans did cooperate with the President to pack the Commission with their own, it would cast new light on the reasons why an agency like this might be wisely structured to be 50-50, with no party controlling. Democrats and reformers, resisting the Republican power play, will now appeal to this feature of the FEC’s design. Dreaded deadlock will start to look much better.