A bipartisan group of election lawyers is warning of the potential consequences of going through a major election year without a quorum at the FEC and calling on President Trump and congressional lawmakers to make appointments quickly.
Their warnings of oversight dysfunction come as the FEC has been bullish about its enforcement ability despite its lack of quorum.
FEC Chairwoman Ellen L. Weintraub, in a Dec. 20, 2019 letter urging the president and Senate to fill the commission’s three vacancies, said commission’s ability to work was unhampered despite missing 50 percent of its six-seat leadership.
“FEC staff are continuing to process all complaints coming in the door and advance already authorized investigations,” she wrote. “An election lawyer would be committing professional malpractice if they advised a client to ignore federal campaign-finance laws while the Commission is short on commissioners.”
Issue One, a bipartisan election reform group, highlighted the letter to reporters Monday, and noted that the FEC “currently has more than 300 cases on its enforcement docket that cannot be resolved until the agency regains a quorum, and the statute of limitations may expire for about 70 of these cases before the FEC regains a quorum.”
Meanwhile, the legal group added in its Jan. 6 letter to the White House, Senate and House leaders: “the lack of a quorum prevents the Commission from: enforcing federal law, leaving complainants and the public with no redress against violation; issuing advisory opinions, leaving those who are committed to complying with the law unable to secure official guidance about often complex compliance matters; auditing candidates and committees whose conduct warrants such review, leaving ongoing problems unaddressed; and considering or taking regulatory action, leaving rules in place that merit reconsideration and failing to deal with changed circumstances that merit new rules.”
The group urged party leaders and the president to “agree on a slate of nominees, as has been the tradition for years, then for the President to nominate Commissioners and the Senate to confirm them at the earliest possible date.”
This cycle could see campaign ad spending hit some $10 billion. But that hasn’t moved lawmakers to act on the latest FEC vacancy, which has left the campaign regulator without the four commissioners necessary for a quorum since August.
“This is an untenable situation,” the lawyers wrote.
In fact, the attorneys hint at a complete revamp of the FEC by noting that three current commissioners “are holdover members whose terms have long since expired and who are ineligible for reappointment.”
Despite the lack of movement early in 2020, some practitioners believe that the vacancies will be filled sooner than later. In an interview in late 2019, former FEC Chairman Michael Toner told C&E that he expected a quorum to be established sooner than later.
In the meantime, some election lawyers have been busy disabusing clients from their belief that the absence of an FEC quorum means a more liberal approach to enforcement by the feds.
“Whenever anyone says, ‘what’s the FEC going to do?’ I always chuckle,” David Mitrani, a senior associate at Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., recently told C&E. “The answer is that’s only a small part of the picture. And you never know.”