Federal Election Commission: Membership and Policymaking Quorum, In Brief
Released: 2018-04-12T00:00:00

Introduction

The Federal Election Commission (FEC) is a six-member independent regulatory agency. Congress created the FEC in 1974, after controversial fundraising during 1960s presidential campaigns and the early 1970s Watergate scandal. The commission is responsible for administering federal campaign finance law and for civil enforcement of the Federal Election Campaign Act (FECA). The FEC also discloses campaign finance data to the public, conducts compliance training, and administers public financing for participating presidential campaigns.

FECA establishes six-year terms for commission members. Commissioners may continue in "holdover" status after those terms end. Commissioners are appointed by the President and are subject to Senate confirmation. FECA requires that at least four of the six commissioners vote to make decisions on substantive actions. This includes deciding on enforcement actions, advisory opinions, and rulemaking matters. Because FECA also requires bipartisan commission membership, achieving at least four agreeing votes is sometimes difficult, even with six members present. Vacancies make the task harder by reducing opportunities for a coalition of at least four votes.

In 2008, the FEC lost its policymaking quorum for six months. As of this writing, the commission again faces a potential loss of its policymaking quorum because only four commissioners remain in office. One nomination is pending, and the status of future departures remains unclear. These developments notwithstanding, it is unclear whether the agency will lose more commissioners.

This report provides a brief overview of the FEC's policymaking powers without at least four commissioners in office. The topic may be relevant for congressional oversight of the agency, particularly if it loses its policymaking quorum, and for Senate consideration of nominations to the agency. Other CRS products provide additional information about campaign finance policy, the FEC, and procedural issues.

Recent Vacancies and Nomination

As of this writing, the FEC is operating with four commissioners instead of six, as shown in Table 1 below.

The current vacancies developed as follows:

Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned, leaving the agency with five members. Ravel's term would have expired on April 30, 2017. As of this writing, no nominee for the Ravel seat has been announced. On February 7, 2018, Republican Commissioner Lee Goodman announced his intention to resign, effective February 16, 2018. As of this writing, no nominee for the Goodman seat has been announced. Once Goodman left the agency, the FEC had four remaining members.

In addition to the current two vacancies, others are possible in the future, as noted below.

Recent developments suggest that Republican Commissioner Matthew S. Petersen could leave the commission. On September 11, 2017, President Trump nominated Petersen for a federal judgeship. Petersen subsequently withdrew from consideration for the judgeship, reportedly writing, "until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission." Petersen remains on the commission in holdover status after his term expired in 2011. The status of a nomination intended to replace Commissioner Petersen is unclear. After Petersen was nominated to the federal judgeship, but before he withdrew from consideration for that position, President Trump nominated a replacement for Petersen at the FEC. On September 14, 2017, President Trump nominated James E. "Trey" Trainor III to the Petersen seat. This nomination was returned to the President at the end of the first session. The White House resubmitted the nomination on January 8, 2018, at the start of the second session of the 115 th Congress.

It is unclear whether any other commissioners currently plan to leave. For several years, periodic reports have suggested that one or more other commissioners also plan to depart. If any of the four remaining commissioners departed, the agency would be without a policymaking quorum.

The Commission, Policymaking, and Appointments

Original, Invalidated Appointment Structure

Congress originally designed eight positions for the FEC: six commissioners and two nonvoting ex officio members (the Clerk of the House and Secretary of the Senate). Under that structure, two commissioners were appointed by the President, two by the President pro tempore of the Senate, and two by the Speaker of the House.

Two federal court decisions altered the FEC's original design. First and most significantly, in Buckley v. Valeo (1976) the Supreme Court of the United States invalidated the original appointments method, holding that congressional appointments violated the Constitution's Appointments Clause. Almost 20 years later, a federal court again found fault with the FEC's appointment structure. In 1993, the U.S. Court of Appeals for the District of Columbia held in FEC v. NRA Political Victory Fund that the presence of the two congressional ex officio members violated constitutional separation of powers. Congress did not amend FECA responding to this decision, although the ex officio members are no longer appointed.

Current Appointment Structure

In a broad revision of FECA in 1976, undertaken in response to the Buckley decision, Congress adopted the current appointment method. Today, all commissioners are presidentially appointed subject to Senate advice and consent. Members of the congressional leadership or committees of jurisdiction (the House Committee on House Administration and Senate Rules and Administration Committee) apparently continue to influence the appointment process.

FECA specifies few qualifications for FEC commissioners, noting simply that they "shall be chosen on the basis of their experience, integrity, impartiality, and good judgment." As one former general counsel notes, although many commissioners are lawyers, "a commissioner does not have to be a lawyer and the commission has a long history of having non-lawyers serve as members." Commissioners typically have experience as congressional staffers, political professionals, election lawyers, or some combination thereof.

Party Balance and Terms

No more than three commissioners may be affiliated with the same political party. In practice, the commission has been divided equally among Democrats and Republicans, although one current commissioner identifies as an independent. FECA staggers commissioner terms so that two expire every other April 30 during odd-numbered years (e.g., 2019, 2021, etc.). This arrangement means that, at least as designed, two new commissioners would assume office biennially. However, the President is under no obligation to make biennial nominations.

Expired Terms and Holdover Status

Currently, FEC commissioners may serve a single six-year term. As another CRS report explains, for some federal boards and commissions, including the FEC, "[a]n individual may be nominated and confirmed for a seat for the remainder of an unexpired term in order to replace an appointee who has resigned (or died). Alternatively, an individual might be nominated for an upcoming term with the expectation that the new term will be underway by the time of confirmation." Some FEC commissioners have assumed office when the term for which they were nominated was well underway. For example, on June 24, 2008, the Senate confirmed Donald F. McGahn and Steven T. Walther to terms that expired just 10 months later, on April 30, 2009. Both continued serving in their seats past the expiration of their terms, although they could have been replaced through subsequent appointments.

These and other commissioners could remain in office because FECA permits FEC members to serve in "holdover" status, exercising full powers of the office, after their terms expire "until his or her successor has taken office as a Commissioner." As Table 1 above shows, as of this writing, all current commissioners are serving in holdover status.

At Least Four Agreeing Votes Required for Most Policymaking

FECA requires affirmative votes from at least four commissioners to authorize most policymaking activity. In particular, this includes

holding hearings; making, amending, or repealing rules; initiating litigation or defending the commission in litigation, including appeals; issuing advisory opinions; conducting investigations, and making referrals to other enforcement agencies; approving enforcement actions and audits; and issuing and amending forms (e.g., those used in the disclosure process).

Matters without at least four votes for or against an action can have the effect of leaving questions of law, regulation, or enforcement unresolved, as some view the issues in question as having been neither approved nor rejected.

With fewer than four commissioners, existing campaign law and regulation would remain in effect. Agency staff and remaining commissioners could continue to provide general information, and to prepare for a repopulated commission. In addition, as explained below, the commission revised its internal procedures before it last lost a policymaking quorum to clarify functions that could continue.

Loss of Policymaking Quorum in 2008

The significance of the four-vote threshold became particularly evident in 2008. Following expired recess appointments and amid ongoing Senate consideration of FEC nominations, the agency had just two commissioners for the first six months of the year. In late 2007, in anticipation of only two commissioners remaining in office in 2008, commissioners amended the FEC's rules of internal procedure to permit executing some duties if the agency lost its four-member policymaking quorum. These revisions to the FEC's 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.

During the loss of the commission's policymaking quorum in 2008, the two remaining commissioners (David Mason (R) and Ellen Weintraub (D)) met publicly to discuss advisory opinions, but could not vote to issue those opinions. At the time, the commissioners explained that although they recognized that the commission lacked a quorum, they were attempting to provide general feedback, particularly given the ongoing 2008 election cycle. That practice generated some controversy, however, as some practitioners contended that remaining commissioners did not have the authority to meet and provide guidance. It is unclear whether commissioners would continue the practice in the future with fewer than four members.

After the Senate confirmed nominees in June 2008, the new commissioners faced a backlog of enforcement matters, litigation, advisory opinions, and rulemakings to implement portions of the Honest Leadership and Open Government Act (HLOGA). The agency returned to normal operations during the rest of 2008 and throughout 2009. The FEC has maintained a full policymaking quorum since then.

Concerns About Potential Future Loss of Policymaking Quorum

The FEC currently retains its policymaking quorum. Media reports suggest that additional commissioners may be considering leaving the agency, although such reports are relatively common and do not necessarily foreshadow actual departures.

If there are any departures before additional confirmations, it would be impossible for the FEC to reach a policymaking quorum. As explained previously, this means that even if all remaining commissioners agreed on an outcome, the agency would have too few votes to execute its most consequential duties. Among others, current matters before the FEC include a proposed rulemaking on disclosure requirements for certain online political advertising, as well as responding to developments during the 2016 election cycle and preparing for 2018. Particularly during election years, advisory opinion requests are common.