The FEC Can’t Do Anything. Congress Should Leave It That Way

The Federal Election Commission (FEC) is vital to America’s political process. As the only federal agency dedicated solely to enforcing election laws, the FEC plays a critical role in protecting voters and maintaining a level playing field for political campaigns.

But at this moment, America faces an unfortunate choice: We can have an FEC that does nothing or an FEC that President Trump wields as a partisan weapon against his political opponents.

Between those two unhappy options, the nation is better off without a functioning FEC for now.

One of the FEC’s six seats became vacant last week. Combined with a prior resignation and President Trump's unlawful firing of another commissioner earlier this year, the FEC is now down to only three members—one fewer than the minimum quorum it needs to take legal action on election issues. The FEC has faced other challenges in recent years, but without a quorum, the agency is effectively out of business: it can’t make any rules, issue opinions, or launch investigations.

The FEC’s incapacitation is not good for voters or for American elections. Under normal circumstances, restoring the FEC’s quorum would be a no-brainer. Indeed, in prior instances when the FEC has lost its quorum, our organization, Campaign Legal Center (CLC), has vigorously argued for Congress to quickly confirm new members so that the agency can perform its role of enforcing election laws.

This time is different.

In February, President Trump issued an executive order in which he claimed to take control of all independent federal agencies, including the FEC. He directed the FEC to conform its official legal actions to his positions and to the positions of Attorney General Pam Bondi. Under this order, the FEC may not take any action that is contrary to Trump or Bondi’s views of election law.

We cannot overstate how dangerous this is. A big part of the FEC’s job is to enforce the law against political candidates, parties, and members of Congress—and the President is now claiming that he has the right to control who, when, and how the FEC prosecutes.

Particularly from a President who has demonstrated unprecedented willingness to use his power against anyone who dares oppose him, placing the enforcement arm of election law under his control would enable him to investigate his political opponents in Congress for supposed election offenses, while also allowing his allies to break the rules with impunity.

This should be deeply concerning to every American.

More than 50 years ago, Congress intentionally and carefully insulated the FEC from that type of presidential control for exactly this reason. Congress recognized the obvious: The enforcement of election laws cannot be in the hands of someone who—either personally or through his party—is an active player in those same elections.

We know from personal experience that this insulation has been successful. One of us was the Republican chairman of the FEC, and the other held senior nonpartisan positions at the agency, under a combined four Presidents. At no time did either of us witness any presidential administration exert undue influence over the FEC’s actions.

President Trump’s order is completely contrary to the independent oversight role Congress created the FEC to serve. Yet the FEC’s remaining commissioners have conspicuously failed to disavow—or even question—the president’s power grab.

At least three times since the president issued his order, the FEC has had specific opportunities to reject the president’s claim of control and assert its independence. All three times, it has declined to do so.

First, when the order was issued, we urged the FEC to disavow it. The agency said nothing.

Second, in the context of a lawsuit filed by the Democratic Party, the FEC has been given multiple chances to assure the court that the FEC will not allow itself to be co-opted by the administration. The FEC has instead litigated the case on hyper-technical issues, studiously avoiding saying anything about the core matter of President Trump’s takeover attempt.

And third, in a formal request CLC filed with the FEC, we asked for a ruling that the president’s legal views would not grant blanket amnesty to his political allies from FEC enforcement. The FEC’s response again took refuge in technicalities, and the agency explicitly disclaimed offering an opinion on “any executive orders” or “the authority of any Executive Branch official or agency.”

At this point, we can only interpret the FEC’s repeated refusal to speak up for itself as its answer: capitulation.

Weaponization of election law would threaten the very core of American democracy. Accordingly, Congress must not restore the FEC’s quorum unless and until the agency’s commissioners reassert their independence. And any future nominees for FEC positions must be questioned extensively on their commitment to impartiality.

The FEC is too important to be turned into the partisan tool of a vindictive president.

Trevor Potter is founder and president of the Campaign Legal Center. Read more from The Fulcrum's Election Dissection blog or see our full list of contributors.