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FEDERAL
ELECTIONCOMMISSION
Hans A. von Spakovsky

MISSION/OVERVIEWThe Federal Election Commission (FEC) is an independent federal agency thatbegan operations in 1975 to enforce the Federal Election Campaign Act (FECA)
passed by Congress in 1971 and amended in 1974.1 FECA governs the raising andspending of funds in all federal campaigns for Congress and the presidency. The
FEC has no authority over the administration of federal elections, which is performed by state governments.
While the FEC has exclusive civil enforcement authority over FECA,2 theU.S. Justice Department has criminal enforcement authority, which is defined
as a knowing and willful violation of the law.3 Because the FEC is an independentagency and not a division or office directly within the executive branch, the authority of the President over the actions of the FEC is extremely limited.
As former FEC Commissioner Bradley Smith has said, the FEC’s “[r]egulationof campaign finance deeply implicates First Amendment principles of free speech
and association.”4 The FEC regulates in one of the most sensitive areas of the Bill ofRights: political speech and political activity by citizens, candidates, political parties, and the voluntary membership organizations that represent Americans whoshare common views on a huge range of important and vital public policy issues.
NEEDED REFORMS

Nomination Authority. The President’s most significant power is the appointment of the six commissioners who govern the FEC, subject to confirmation bythe U.S. Senate. Commissioners may only serve a single term of six years but— 861 —Mandate for Leadership: The Conservative Promise

because they stay in office until a new commissioner has been confirmed, manycommissioners continue to serve past their terms.5 Currently, the longest serving commissioner still at the FEC is Ellen Weintraub (D), whose regular term
expired in 2007.
Under FECA, no more than three commissioners may be from the same party.6
While that means that a commissioner could be an independent or a member of theLibertarian or Green Parties, in practice, this has meant that the FEC has always
had three Democrat and three Republican commissioners.7
There is a long-held political tradition since the FEC’s founding that when acommission slot held by a member of the opposition political party opens up, thePresident consults with, and nominates, the chosen nominee of the opposition
party’s leader in the Senate. In exchange, the Senate party leader and his caucus
agree to approve the President’s nominee to fill an empty position for the President’s political party. It has also been customary to advance the two nominees ofthe differing political parties at the same time; this bipartisan pairing has historically permitted easy confirmation of both parties’ selectees.
Thus, by convention, a Republican President will nominate a Republican anda Democrat for two open commission slots, including the choice of the Democrat
Senate leader for his party’s seat. In turn, the senator will direct his party to voteto confirm both nominees. In the almost 50-year history of the FEC, this tradition
has only been broken once—when Senate Majority Leader Harry Reid refused toapprove one of George W. Bush’s nominees (Hans von Spakovsky) for a Republicancommission slot.8In 2025, when a new President assumes office, the term of five of the current
FEC commissioners will have either expired or be about to expire:9l

Shana M. Broussard (D)—April 30, 2023

l

Sean J. Cooksey (R)—April 30, 2021l

Allen Dickerson (R)—April 30, 2025lJames Trainor, III (R)—April 30,2023

lEllen L. Weintraub (D)—April 30, 2007

During their terms, the three Republican commissioners have demonstrated
with their votes and their public statements that they believe the FEC should not
overregulate political activity and act beyond its statutory authority, construe
ambiguous and confusing provisions against candidates and the public instead ofthe government, and infringe on protected First Amendment activity.

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The President assuming office in 2025 must ensure, if the three
Republican commissioners do not wish to remain on the FEC pasttheir terms, that nominees for these positions share the views of
those commissioners.
Also, to the extent that the President has the ability to negotiate with
the Democratic Party leader in the Senate, he should try to temper
any choice of the opposition party to ensure that this individual does
not have extreme views on aggressive overenforcement that would
severely restrict political speech and protected party, campaign, andassociational activities.

U.S. Department of Justice/FEC-Related Activities. The President does
have control of the Department of Justice (DOJ). Thus, he has authority as President, primarily through his choice of attorney general and other political appointees,
to direct the prosecutorial functions of the DOJ regarding criminal enforcement ofFECA. Such investigations and prosecutions are carried out by the Public Integrity
Section of the Criminal Division, with the assistance, coordination, and help of theOffices of U.S. Attorneys in whatever state an alleged violation occurs.
lThe President must ensure that the DOJ, just like the FEC, isdirected to only prosecute clear violations of FECA. The department
must not construe ambiguous provisions against the public instead of
the government or apply FECA in a way that infringes on protected First
Amendment activity.

It should be but is not always obvious to overzealous government prosecutors
that if a federal law is confusing, it would be unjust to prosecute individuals whoare unable to determine if they are violating the law.
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The President should direct the DOJ and the attorney general not toprosecute individuals under an interpretation of the law with which
the FEC—the expert agency designated by Congress to enforce thelaw civilly and issue regulations establishing the standards underwhich the law is applied—does not agree.
In making prosecution decisions, DOJ should be instructed to consult
and consider all official actions by the FEC that interpret the law
including prior enforcement actions, regulatory pronouncements,and advisory opinions, just as private practitioners, the public, andpolitical actors must do.
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Mandate for Leadership: The Conservative Promise

It is fundamentally unfair for the DOJ to prosecute an individual for supposedly
violating the law when the FEC has previously determined that a similarly situated individual has not violated the law. Furthermore, this rule should apply evenwhen there is a tied or three-to-three vote by the FEC commissioners whether inan enforcement action or an advisory opinion since under the statute, the FEC
cannot take any action unless there are four affirmative votes.
Again, it seems obvious that if the commissioners designated by Congress tointerpret the law are unable to determine what the law requires, then it is unfair
to prosecute a citizen for violating that law. The DOJ should not engage in criminal prosecutions that stretch legal theories and defy FEC interpretations andregulations.
Another issue directly related to what has often been a contentious relationshipbetween the FEC and the DOJ is the conduct of litigation. The vast majority offederal agencies are defended by the DOJ, which also represents them when theagency is pursuing litigation as a plaintiff.
The FEC, however, is one of the few federal agencies with independent litigating
authority.10 The FEC’s lawyers represent the agency in federal court up through thefederal courts of appeal. If a case reaches the U.S. Supreme Court, then the Officeof the Solicitor General of the Justice Department represents the FEC.
In recent years, the FEC has failed to defend itself against litigation filed bypolitical allies of certain Democrat commissioners. It takes four votes to authorize
the general counsel of the FEC to defend a lawsuit filed against the agency, andthose commissioners have refused to provide that fourth vote, so “the public wastreated to the scandalous spectacle of the Commission—an independent agencyof the United States government—defaulting in litigation before federal courts.”11
These cases involved enforcement matters in which the commissioners disagreed on whether a violation of the law had occurred. Accordingly, the final
votes of the commissioners did not approve moving forward with enforcement
because there were not four affirmative votes that a violation of the law occurred.
When private plaintiffs then sued the FEC for failing to take action, Democrat
commissioners refused to authorize the defense of the FEC in litigation as away of circumventing the prior final action of the FEC and the FECA four-voterequirement to authorize an enforcement action. Such defaults in litigation areunacceptable.
lThe President should direct the attorney general to defend theFEC in all litigation when there is a failure of the commissioners toauthorize the general counsel of the agency to defend it. No legislation
would be needed to accomplish this; the DOJ has the general authority todefend the government and its agencies in all litigation.

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2025 Presidential Transition ProjectlAs a legislative matter and given this abuse, the President should
seriously consider recommending that Congress amend FECA toremove the agency’s independent litigating authority and rely on theDepartment of Justice to handle all litigation involving the FEC.

There are also multiple instances of existing statutory provisions of FECA andthe accompanying FEC regulations having been found unlawful or unconstitutional by federal court decisions, yet those statutory provisions remain in the U.S.
Code and the implementing regulations remain in the Code of Federal Regulations.12 In such instances, those regulated by the law, from candidates to the public,
have no way of knowing (without engaging in extensive legal research) whether
particular statutory provisions and regulations are still applicable to their actionsin the political arena.
ll

The President should request that the commissioners on the FEC
prepare such guidance.
In the event that the FEC fails to act, the President should direct
the attorney general to prepare a guidance document from theDepartment of Justice for the public that outlines all of the FECA
statutory provisions and FEC regulations that have been changed,amended, or voided by specific court decisions.

Legislative Changes. While a President’s ability to make any changes at anindependent agency like the FEC is limited,13 the President has the ability to makelegislative recommendations to Congress. One of the most obvious changes thatis needed is to end the current practice of allowing commissioners to remain asserving commissioners long after their term has expired, defying the clear intent ofCongress in specifying that a commissioner can only serve a single term of six years.
ll

The President should prioritize nominations to the FEC once
commissioners reach the end of their terms and should be assisted
by legislative language either eliminating or limiting overstays toa reasonable period of time to permit the vetting, nomination, andconfirmation of successors.
The President should vigorously oppose all efforts, as proposed,
for example, in Section 6002 of the “For the People Act of 2021,”14
to change the structure of the FEC to reduce the number ofcommissioners from six to five or another odd number. The current
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an advisory opinion, or issue regulations, ensures that there is bipartisan
agreement before any action is taken and protects against the FEC being
used as a political weapon.
With only five commissioners, three members of the same political party could
control the enforcement process of the agency, raising the potential of a powerfulfederal agency enforcing the law on a partisan basis against the members of theopposition political party. Efforts to impose a “nonpartisan” or so-called “independent” chair are impractical; the chair will inevitably be aligned with his or her
appointing party, at least as a matter of perception.
There are numerous other changes that should be considered in FECA andthe FEC’s regulations. The overly restrictive limits on the ability of party committees to coordinate with their candidates, for example, violates associationalrights and unjustifiably interferes with the very purpose of political parties: toelect their candidates.
lRaise contribution limits and index reporting requirements toinflation. Contribution limits should generally be much higher, as they
hamstring candidates and parties while serving no practical anticorruption
purpose. And a wide range of reporting requirements have not been indexed
to inflation, clogging the public record and the FEC’s internal processes withsmall-dollar information of little use to the public.

CONCLUSION

When taking any action related to the FEC, the President should keep in mind
that, as former FEC Chairman Bradley Smith says, the “greater problem at theFEC has been overenforcement,” not underenforcement as some critics falselyallege.15 As he correctly concludes, the FEC’s enforcement efforts “place a substantial burden on small committees and campaigns, and are having a chilling effecton some political speech…squeezing the life out of low level, volunteer political activity.”16
Commissioners have a duty to enforce FECA in a fair, nonpartisan, objective
manner. But they must do so in a way that protects the First Amendment rightsof the public, political parties, and candidates to fully participate in the politicalprocess. The President has the same duty to ensure that the Department of Justiceenforces the law in a similar manner.

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ENDNOTES

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52 U.S.C. § 30101 et seq.
52 U.S.C. § 30106(b)(1).
52 U.S.C. § 30109(c) and (d).
Bradley A. Smith and Stephen M. Hoersting, “A Toothless Anaconda: Innovation, Impotence andOverenforcement at the Federal Election Commission,” 1 Election Law Journal 2 (2002), p. 162.
52 U.S.C. § 30106(a)(2).
52 U.S.C. § 30106(a)(1).
Former Commissioner Steven Walther (2006–2022) was listed nominally as an independent but he wasrecommended to President George W. Bush for nomination by former Nevada Sen. Harry Reid (D) and almost
always voted in line with the Democrat commissioners on the FEC.
Hans von Spakovsky served as a commissioner from 2006 to 2007 in a recess appointment. While no othernominee has been rejected by the Senate, the tradition of bipartisan voice vote confirmation has largely
ended. Two Republican nominees—Allen Dickerson and Sean Cooksey—were confirmed on party-line votes
in 2020. And one Democrat—Dara Lindenbaum—was confirmed with the support of only six Republicansenators in 2022.
The term of the 6th Commissioner, Dara Lindenbaum (D), will expire on April 30, 2027.
52 U.S.C. § 30107(a)(6).
“Statement of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and James E. ‘Trey’ Trainor,
III Regarding Concluded Enforcement Matters,” Federal Election Commission (May 13, 2022), https://www.
fec.gov/resources/cms-content/documents/Redacted_Statement_Regarding_Concluded_Matters_13_
May_2022_Redacted.pdf.
See, e.g., McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014).
It should be noted, however, that the constitutional authority of a President to, among other things, remove
appointees and direct the actions of independent agencies is a hotly contested and increasingly litigated issue.
See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010); Seila Law LLC v.
Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020); and Collins v. Yellen, 141 S. Ct. 1761 (2021).
H.R. 1, 117th Cong. (2021–2022).
Bradley A. Smith and Stephen M. Hoersting, “A Toothless Anaconda: Innovation, Impotence andOverenforcement at the Federal Election Commission,” 1 Election Law Journal 2 (2002), p. 171.
Id.

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