Key Takeaways
- After Commissioner Allen Dickerson's departure, the FEC, a six-member agency, is left with three commissioners.
- Because actions pertaining to the Federal Election Campaign Act of 1971 require a four-vote majority in the FEC, the capabilities of the remaining commissioners are significantly limited.
- Quorum must be restored in order to begin new investigations, approve settlement agreements, authorize staff to defend against challenges to FEC actions, and more.
- While FEC enforcement is on hold, those regulated by the agency should remain diligent about compliance, as consequences for violations are still possible through other avenues.
For the fourth time in its 50-year history, the Federal Election Commission (FEC), the independent agency responsible for the administration and civil enforcement of the federal campaign finance laws, has lost a quorum of its members. The FEC needs four votes to enforce the laws governing how campaigns may raise and spend money. However, with the departure of Commissioner Allen Dickerson on April 30, the six-member agency now has only three commissioners. The resulting disruption will further increase the incentives for other agencies and litigants to intervene, complicating the decision-making processes of those active in elections.
Congress established the FEC in the immediate wake of the Watergate scandal. Having concluded that corruption presented a threat to the electoral process, lawmakers structured the agency to promote impartial enforcement of the law. Toward this end, the Federal Election Campaign Act of 1971, as amended (FECA), prohibits any more than three of the FEC’s six members from being affiliated with the same political party and requires the affirmative vote of four commissioners to accomplish core agency functions.
FECA requires four votes for the Commission to initiate, defend, or appeal litigation to enforce the law; make, amend, or repeal regulations; and to conduct investigations, hold hearings, and report apparent violations to other law enforcement authorities. An FEC directive further—and dramatically—limits how the agency may conduct business when it has fewer than four members. It permits the remaining commissioners to act only on a narrow set of enumerated actions, like publishing educational materials, approving certain personnel actions, and reviewing the agency’s labor-management plan, budget, and contracts. These limited actions can be taken by a majority vote, but that majority may not consist entirely of one party’s commissioners.
The FEC’s lack of quorum also means that the regulated community cannot avail itself fully of the advisory opinion process. FECA allows a person to obtain and rely on an advisory opinion from the FEC as a defense against future enforcement—but only when an affirmative majority of four Commissioners have voted to issue the opinion. The advisory opinion process can be highly useful for companies with complex compliance questions, which seek the support of a formal, binding opinion to protect themselves against adverse action or public controversy, or in the diligence process.
The FEC may continue to receive and process complaints, and staff may continue to conduct previously authorized investigations.[1] However, the Commission cannot begin any new investigations or approve any settlement agreements until a quorum is restored. The likely effect will be major disruption and delay in agency enforcement. When the FEC recently lost quorum, it reported having 388 pending matters, with a backlog of 200 reports awaiting Commission deliberation. Included among the backlog were 115 matters that contained allegations that would expire within 18 months under the five-year statute of limitations.
Without a quorum of four commissioners, the FEC cannot authorize staff to defend against litigation challenging an earlier dismissal of a complaint or inaction on a complaint. FECA permits aggrieved complainants to sue the FEC in the United States District Court for the District of Columbia when the agency fails to act on a complaint and allows that court to grant a complainant a private right of action against the respondent if the FEC fails to conform to a court order. Recent years have seen a surge in these types of suits, and a protracted lack of quorum would bring more suits still. In the FEC’s early years, successful failure-to-act suits were extraordinarily rare. More recently, it has become common for advocacy groups to file complaints with the agency, sue the FEC for failure to act when it cannot agree on the complaint, and seek a private right of action against the respondents. With the FEC powerless to defend itself against these suits, it is not clear how the Justice Department might intervene, especially in light of a recent executive order claiming “[p]residential supervision and control of the entire executive branch,” including the FEC.
Despite the FEC’s enforcement hiatus, those regulated by FECA cannot safely assume that violations will have no consequences:
- FECA permits campaign finance violations to be prosecuted up to five years after the date of the violation. The FEC’s lack of quorum could prove short-lived, and the FEC worked through its enforcement backlog with remarkable speed when it last regained quorum.
- FECA not only provides a potential private right of action but also gives the Justice Department jurisdiction over certain knowing and willful violations of the law.
- While FECA preempts state laws with respect to federal elections, recent years have seen states pursue criminal enforcement on other legal theories over conduct related to federal elections.
- Federal agencies besides the FEC can pursue election-related conduct, as the FCC recently did when it levied fines against firms involved in distributing deepfake robocalls that impersonated President Joe Biden.
- Campaign finance violations have become a staple of the congressional ethics enforcement process—especially in the House, where the Committee on Ethics has consistently maintained that it has jurisdiction over the conduct of a Member’s successful campaign, and where the independent Office of Congressional Conduct (formerly known as the Office of Congressional Ethics) has initiated multiple investigations over campaign misconduct, triggering public reports.
- For private companies, compliance with FECA can become an issue in the diligence process, when an acquiring company seeks to ascertain its potential exposure in the wake of a merger or purchase.
- Finally, the FEC will continue to process and publicly post campaign finance reports showing contributions and expenditures. These reports are filed under penalty of false statement under 18 U.S.C. § 1001 and 18 U.S.C. § 1519. Campaigns, PACs, and those who pay for independent expenditures (including nonprofits and so-called super PACs) will continue to face public scrutiny over alleged violations.
It is not known how long the FEC will be without quorum. Commissioners are appointed by the president and confirmed by the Senate. At this writing, the Trump Administration has not announced any potential candidates, despite one commissioner stepping down in January 2025, and President Trump firing another the following month.[2]
However long it lasts, the FEC’s lack of quorum presents one more element of disruption in a political process that presents cross-ideological risks for companies, candidates, nonprofits, and others active in elections. Regulated entities will want to take special care to review their compliance practices and decisions to ensure that they can withstand scrutiny in unpredictable, adverse circumstances.
Endnotes
[1] Once when the FEC lacked quorum, its Office of General Counsel continued to issue subpoenas in at least one previously approved investigation in which four commissioners had approved subpoena authority in the lead up to the loss of quorum. It is not known at this time whether the current commissioners conducted similar anticipatory actions before Commissioner Dickerson's departure.
[2] The legality of that termination is in some dispute, but the FEC's official position appears to be that the commissioner's seat is vacant.
