The Federal Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications
Released: 2009-05-05T00:00:00

The Commission and Most Recent Nominations: Brief Overview

Throughout the first session of the 110 th Congress, the Senate considered four nominations to the six-seat FEC. Nominees Robert D. Lenhard (D), Hans A. von Spakovsky (R), and Steven T. Walther (D) served in recess appointments at the agency during that time and until their appointments expired at the end of the first session. The fourth nominee, David M. Mason (R), served at the agency since 1998 and was renominated (although his re-nomination was withdrawn in May 2008, as was von Spakovsky's).

Throughout the first session of the 110 th Congress, the von Spakovsky nomination generated controversy. In particular, some Senators and others debated von Spakovsky's actions on voting rights issues while serving at the Justice Department. Much of a June 13, 2007, Senate Rules and Administration Committee hearing and subsequent markup focused on von Spakovsky. On September 26, 2007, after being unable to reach agreement on reporting the nominations individually, the committee reported all four nominees en bloc without recommendation. In the closing days of the first session, the Senate was unable to reach a compromise over the nominees, including whether they should be considered on the floor separately or as a group. The apparent stalemate over the nominations continued into the second session of the 110 th Congress.

The Lenhard, Mason, von Spakovsky, and Walther nominations remained pending in the Senate early in the second session of the 110 th Congress, but because the three recess appointments expired at the end of the first session, just two commissioners—Mason (R) and Ellen L. Weintraub (D)—remained in office. Both were previously confirmed by the Senate and could continue serving in holdover status following expired terms.

Few developments occurred in early 2008. However, additional nomination activity took place beginning in April. First, Lenhard requested that his nomination be withdrawn. Second, on May 6, 2008, President George W. Bush made three new nominations to the FEC and withdrew Mason's re-nomination. Donald F. McGahn II (R), an election lawyer, was nominated to the Mason seat. At the same time, the President withdrew Lenhard's name and nominated Cynthia L. Bauerly (D), a Senate staffer, to that seat. Caroline C. Hunter (R), then a member of the Election Assistance Commission (EAC), was nominated to the FEC seat formerly held by Michael E. Toner. (Toner resigned from the Commission in 2007.) On May 16, 2008, von Spakovsky requested that his nomination be withdrawn. On May 22, 2008, following a hearing the previous day, the Senate Rules and Administration Committee favorably reported the Bauerly, Hunter, and McGahn nominations. Also on May 22, 2008, the White House announced the President's intention to nominate Matthew S. Petersen (R), a Senate staffer, to the seat formerly held by von Spakovsky. Walther's nomination also continued to remain pending.

On June 24, 2008, the Senate confirmed Bauerly, Hunter, McGahn, Petersen, and Walther. The five new commissioners joined Ellen Weintraub, who continues to serve at the FEC in holdover status.

FEC appointments issues remained quiet until April 2009, when the terms of Commissioners McGahn and Walther expired. They joined Commissioner Weintraub in holdover status. As Table 1 shows, even with three expired terms, six commissioners remain in office. (The FEC would not lose its policymaking quorum until fewer than four commissioners remained in office.) On May 1, 2009, President Obama announced his intention to nominate Service Employees International Union (SEIU) associate general counsel John J. Sullivan to the Commission. The Senate received the nomination on May 4. Sullivan would replace Commissioner Weintraub.

Effects of a Commission with Fewer than Four Members

Functions that Could Continue Unaffected

Even a two-member Commission was not halted entirely. FECA does not appear to require a four-commissioner majority to permit the FEC to carry out basic information-gathering functions, such as requiring written reports, gathering evidence in enforcement cases, and authorizing subpoenas. With fewer than four commissioners, agency staff and remaining commissioners could also continue to provide general information, and to prepare for a repopulated Commission. Existing campaign law and regulations remained in effect.

In addition, in December 2007, when the FEC still had five commissioners, the Commission voted to amend its rules of internal procedure to permit remaining commissioners to execute some duties. Revisions to the FEC's so-called "Directive 10" permit the Commission to continue meeting with fewer than four members to: approve general public information, such as educational guides; appoint certain staff; and approve other basic administrative and employment matters.

Functions That Require a Four-Commissioner Majority

FECA requires affirmative votes from at least four commissioners to: (1) make, amend, or repeal rules, (2) approve enforcement actions, (3) initiate, or defend itself in, certain court actions, (4) issue advisory opinions, (5) develop forms, (6) conduct hearings and investigations, and (7) refer cases of apparent criminal conduct to law enforcement. FECA also requires a minimum four-vote majority to administer at least some elements of the presidential public financing program, including certifying payments to eligible candidates.

Conclusion

The Federal Election Commission was without a quorum of four commissioners for more than six months in 2008. Commission staff and the remaining two commissioners continued to provide information to the regulated community and to prepare for additional commissioners. In the interim, however, the absence of a quorum at the FEC delayed administering aspects of the presidential public financing program, rulemakings, and enforcement actions.

Immediate issues facing the repopulated Commission included rulemaking to implement portions of the Honest Leadership and Open Government Act of 2007 (HLOGA), pending enforcement cases and advisory opinion requests, and administering the presidential public campaign financing program. The Commission also needed to respond to ongoing litigation surrounding the Bipartisan Campaign Reform Act. During 2009, the Commission continued to work through these and other issues that arose before, during, and after the shutdown.

The loss of a policymaking quorum would not occur again unless fewer than four commissioners were in office. Nonetheless, the 2008 "shutdown" may continue to be of interest to the 111 th Congressional consideration of oversight or appropriations issues.