Elections Agency Commissioner: ‘The Biggest Story at the FEC Is What’s Not Happening’

The agency responsible for enforcing the nation’s campaign finance laws received a funding increase in President Trump’s fiscal 2021 budget request, but if it doesn’t regain a quorum it still won’t be able to address the growing backlog of enforcement cases.

Although the Federal Election Commission has always struggled with its inventory of cases, it’s worsening now that the panel only has three commissioners—one shy of a quorum and thus the ability to carry out its responsibilities. In the president’s $4.8 trillion budget for fiscal 2021 released on Feb. 10, the commission received about $73 million in operating funding, which is approximately 2.7% more than last year’s $71 million. 

“I appreciate the extra funding [in the request],” Democratic Commissioner Ellen Weintraub told Government Executive in an interview. However, “I think that we could use still more funding dedicated to our enforcement program...that would allow us to, assuming we had a quorum, move the cases through the system in an expeditious manner.” She said the majority of funding goes to staff salaries and information technology systems.

At the start of 2019, the FEC had 344 enforcement matters at various stages and 101 were awaiting commission action (such as a vote or dismissal). By September, the commission was able to get the numbers down to 272 for enforcement matters at all stages and 63 awaiting commission action, according to Weintraub’s year-end report. However, with the loss of a quorum the caseload has increased to about 300 and the number of cases awaiting action rose to 119, said Weintraub.

“Honestly the biggest story at the FEC is what’s not happening and that is anything that would require a working commission. It’s really unfortunate,” said Weintraub. The commission is supposed to have a six-member board, and it needs four members for its proceedings to be valid. With only three commissioners the agency cannot launch investigations, issue advisory opinions, publicize rules and make decisions on enforcement actions. This includes dealing with cases involving “illegal, undisclosed and even foreign money spending into election 2020,” the Center for Public Integrity stated.

In the recent interview with Government Executive Weintraub said that the increase in funding for fiscal 2021, if ultimately approved by Congress, ideally would go toward the enforcement program, so people would receive timely responses to their complaints and the agency could hold those in violation of campaign finance laws accountable, among other things. Last year she reported to a congressional committee that the FEC’s enforcement division, which is responsible for upholding federal campaign finance laws, lost over 30% of its staff since 2010, when the division had 59 employees. She said the commission needs a sufficient enforcement division staff in order to make progress on the ever-increasing caseload.

Meredith McGehee, executive director for the nonprofit Issue One, spoke about the situation regarding the funding. “If you don’t have a quorum and a functioning agency to be able to spend the money wisely, you could give it a lot of money,” she said. “I’m glad to see that it’s more money than last [year's request], but first of all it’s very small and second of all, if you don’t have a functioning agency, the increase is going to be fairly meaningless.”

McGehee and Weintraub both acknowledged the commission can do some work without a quorum. The commission is still able to maintain the campaign finance database, staff can answer campaigns’ questions and provide technology support on the online filing system, and analysts can review reports. Weintraub said, “We need the money in order to keep up and running, which we are.”  

When asked if she has heard anything about the president nominating and Senate confirming new commissioners, Weintraub replied, “I have no new information on that front.” Although the commission lost a quorum following the September resignation of Vice Chairman Matthew Petersen, she said the situation was “completely, 100% avoidable” because the two other commissioners who resigned in 2018 and 2017 weren’t replaced.

With the presidential election less than a year away, The New York Times on Thursday reported that intelligence officials warned lawmakers last week about “what appeared to be new information” on Russian attempts to interfere in the 2020 election, just like in 2016. Election interference can take on many forms—voting machine hacking, cyber attacks, disinformation campaigns on social media and foreign spending through political action committees. 

Given the ongoing threats of foreign interference in the 2020 elections, "to not have the FEC able to take action right now is deeply concerning,” Daniel Weiner, a former FEC senior counsel, now Brennan Center for Justice deputy director for election reform, told NPR in late-August. He said the agency is on the "front-line" of combating foreign interference and it will be “impossible until that seat is filled” to take up measures to prevent foreign manipulation.