I am pleased to welcome Karen Sebold to ELB Book Corner, writing about her new book, Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission. (Use that link with code LXFANDF30 for a 30 percent discount). Here is the second of three posts:

I want to thank Rick Hasen for the opportunity to post about my new book, “Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission.” My posts explore the book’s main themes using edited excerpts from the text.

Today’s post examines one of the primary themes of the book: campaign finance laws are only effective if the Federal Election Commission (FEC) is effective. In the U.S., the FEC is the primary agency enforcing campaign finance law. The FEC regulates and oversees the campaign finances of presidential candidates and members of Congress. These elected officials are the primary fundraisers and spenders of campaign contributions in U.S. elections; therefore, they, or their surrogates, are also the primary focus of FEC investigations. These officials could easily exploit the agency, as they control its administrative resources. This leads many observers to believe that the foxes are guarding the henhouse (Oldaker 1986; La Forge 1996; Sheppard 2007).

In my book, I illustrate how the agency’s resources do not match the major increases in election spending. Since 2000, most election cycles have surpassed the previous cycle’s spending level, with over $5 billion spent in the 2000 election and more than $18 billion by the 2020 election (https://www.opensecrets.org/elections-overview/cost-of-election). Yet, the FEC’s budget and staff have minimally increased, if not stagnated, over the last two decades. The structure of the agency and legal requirements for decision-making exacerbate the issues at the agency. The agency is led by a panel of six partisan commissioners, with up to three Democrats and up to three Republicans. Four commissioners must agree on a decision when enforcing campaign finance law.  The requirement that four commissioners agree to an enforcement decision, while only three are allowed from one party, is challenging, especially given that the commissioners are deciding on claims of potential violations against their parties, candidates, or the independent political committees and nonprofit groups that support them. If an investigation is blocked or an enforcement action is stopped because four of the commissioners can not agree, that is as good as getting a case dismissed for the alleged violator. According to Citizens for Responsibility and Ethics in Washington (CREW), the GOP commissioners employed this tactic 29 times as of March 2024 to block the FEC from investigating or taking action against President Trump (https://www.citizensforethics.org/reports-investigations/crew-investigations/gop-commissioners-have-single-handedly-blocked-fec-action-against-trump-29-times/).

The appointment of commissioners has been notoriously a slow process that often leaves the FEC without a quorum (i.e., four commissioners). This leads to a partisan imbalance from the appointment of too few commissioners (especially Democratic commissioners), as the Republicans have dominated the commissioner panel for years. I found these Republican commissioners were more likely to vote against enforcing the law. Critics of the agency (La Forge 1996; Skahan 2018) argue that the commissioner panel is structurally flawed, and as a result, alleged violators often go unchecked. The past few years do not inspire hope that it will improve, as the foxes in charge of the agency continue to undermine it. The FEC was essentially shut down during the majority of Trump’s first administration, and as of May 2025, it is now shut down again due to a lack of a quorum. In December 2024, Republican Sean Cooksey left before his term expired. In February 2025, Trump fired Democratic Commissioner Weintraub. Weintraub was serving well past the expiration of her term, but President Trump has given no indication that he will be appointing her replacement anytime soon. Republican Commissioner Allen Dickerson left in April 2025 before his term expired. The numerous shutdowns at the FEC lead me to believe the easiest way for the foxes to guard the henhouse is to keep the hens out of it.

References:

La Forge, Amanda S. 1996. “The Toothless Tiger – Structural, Political and Legal Barriers to        Effective FEC Enforcement: An Overview and Recommendations.” The Administrative        Law Journal 10, 1: 351- 384. 

Oldaker, William, C. 1986. “Of Philosophers, Foxes, and Finances: Can the Federal Election        Commission Ever Do an Adequate Job?” The Annals of the American Academy of Political            and Social Science 486, 1: 132-145. 

Sheppard, Maurice C. 2007. The Federal Election Commission: Policy, Politics, and        Administration. Lanham, MD.: University of America Press Inc. 

Skahan, Kelly Ann. 2018. “Ineffective by Design: A Critique of Campaign Finance Law   Enforcement in the United States, Australia, and the United Kingdom.” Washington          International Law Journal 27, 2: 577-607.