New hope, new problem: Will the Federal Election Commission shut down?

Agency could lose quorum just as liberals, conservatives find sliver of common ground

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The Federal Election Commission meeting on Dec. 14, 2017. 

Dave Levinthal/Center for Public Integrity 

Caroline Hunter and Ellen Weintraub share a relationship that’s sometimes icy, occasionally testy and rarely dull. Their public disagreements as Federal Election Commission commissioners have spanned a decade across myriad matters material and trivial — political ads, memory skills, breakfast food.

But the dynastic duo, who on Thursday became FEC chairwoman and vice chairwoman for 2018 — both have served years in these capacities before — are forging a detente. 

Hunter, a Republican, recently sought out Weintraub, a Democrat, to privately discuss FEC issues, from improving agency efficiency to more tightly regulating internet-based political communications, on which they might actually agree. In separate interviews, both commissioners said they’re focusing not on their differences, but commonalities — a marked change of tone from two strong personalities who’ve gone stretches without speaking to one another.

At issue is whether their thaw is ultimately for naught. The six-member commission, which regulates and enforces the nation’s campaign finance laws, could face a de facto shutdown just as 2018 congressional midterm elections heat up.

Absent speedy intervention by President Donald Trump and the U.S. Senate, the FEC could soon lose at least two commissioners, and with them, the requirement that four commissioners be present to conduct high-level business such as making rules, levying fines, approving audits and offering political committees official guidance.

Worst case scenario? Hunter and Weintraub find themselves alone atop the FEC, with nothing to do.

Both are Zen about the possibility.

“We’ll just need to keep plugging and chugging while we still have a quorum,” Hunter said.

“It’s so out of my hands I can’t worry about it, but it’s an argument for making every day we’ve got count,” Weintraub said.

 

A slow bleed

Of the FEC’s six commissioner slots — no more than three may be occupied by a single political party — one has sat vacant since March, when Democrat Ann Ravel resigned.

Outgoing Chairman Steven Walther, an independent, and Republican Commissioner Lee Goodman, could quit at any moment. Both continue to serve in “holdover status” despite their six-year terms having long ago expired — the same situation in which Hunter and Weintraub also find themselves.

Walther says he’ll be back at the FEC to begin 2018 as a rank-and-file commissioner, but hasn’t decided how long he’ll stay. “I’m mulling it over,” he said.

Goodman, for his part, has eyed leaving the FEC for months. A political attorney by trade, he says he’s had several private sector opportunities. But he’s so far turned them down.

“Every time I look to leave [the FEC], there’s another fire to put out. I am open to leaving; I’m not bound by any commitment to stay,” Goodman said.

Then there’s the curious case of Republican Commissioner Matthew Petersen.

Petersen’s departure from the FEC appeared imminent, as Trump in September nominated him to serve as a federal district judge for the District of Columbia. But Petersen’s Senate Judiciary Committee confirmation hearing last Wednesday proved disastrous, with Petersen, who the American Bar Association ranked as “qualified,” struggling to answer a flurry of pointed questions about both the law and his experience.

Calling video of the exchanges “my two worst minutes on television,” Petersen withdrew from consideration Monday, saying in a letter to Trump that “until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission.”

Trump had already nominated Texas lawyer Trey Trainor as Petersen’s replacement after briefly slotting Trainor to replace Goodman. The Senate Rules and Administration Committee has not conducted a confirmation hearing for Trainor, nor is one yet scheduled. Given this, it’ll be weeks, even months, before Trainor could plausibly join the FEC.

And while Senate Rules and Administration Committee officials declined to comment on the record, two people familiar with Trainor’s confirmation process confirmed the committee is unlikely to move forward with hearings and votes until Trump also nominates a Democrat.

The White House acknowledged questions from the Center for Public Integrity about Trump’s plans for nominating FEC commissioners, but did not answer them. Trump’s White House counsel is former FEC Chairman Don McGahn, an outspoken critic of federal campaign finance regulations who frequently sought to limit the scope of FEC authority.

The FEC last lost a quorum and shut down a decade ago. The six-month hibernation not only froze agency business but “it was very, very congested with enforcement cases when we got back up,” Walther said.

“Today, we need a full commission as fast as possible,” Walther added, “but that’s very much up to the president.”

FEC not well-known

Such uncertainty surrounding FEC leadership comes at a time when the public is acutely concerned about matters — such as the sources behind political advertisements — within the commission’s jurisdiction, even if they know little about the panel itself.

More than 70 percent of Americans say their knowledge of the FEC doesn’t extend beyond knowing the agency’s name, according to a Center for Public Integrity/IPSOS poll conducted last week. Just 8 percent of respondents considered themselves “very familiar” with the FEC; 30 percent have “never heard of” the FEC, the poll indicates.

But more than eight in 10 poll respondents, regardless of party affiliation, either “strongly agree” or “somewhat agree” that political ads both on TV and online should be required to say who paid for the ad. The FEC in early 2018 is expected to consider new rules for online political advertising disclosure, which are less stringent that rules governing political ads on TV.

Poll respondents are also divided on whether U.S. political elections are “fair and open:” 50 percent say they “somewhat” or “strongly” agree that they are, while 43 percent say they “somewhat” or “strongly” disagree.

Big issues — and uncertainty

The FEC’s leadership tumult also comes at a pivotal time for the agency itself, which is slated to move its headquarters from downtown Washington, D.C., across the street from the FBI’s headquarters, to a smaller, more modern space near Union Station, the city’s main train station.

Commissioners insist the move, while assuredly disruptive to staff, shouldn’t negatively affect the agency’s most public functions, such as publishing terabytes worth of federal campaign finance data online.

Were the FEC to close its doors in 2018, Hunter and Weintraub agree that an agency shutdown would delay hard-fought progress on several key issues that have actually brought a degree of consensus among commissioners.  

That commissioners have found common ground on these matters is notable in and of itself: The FEC’s liberals have long lamented what they consider the agency’s failure to fully honor its post-Watergate promise of combating corruption and graft, at times accusing conservative commissioners of rendering the FEC impotent through inaction.

Conservatives, meanwhile, have waged low-level war against agency overreach, blocking left-leaning colleagues’ attempts to, in their telling, enforce election laws Congress never passed and squelch political speech the Constitution’s First Amendment protects.

Nevertheless, the commission has scored several recent, if modest victories for bipartisanship.

At Walther’s prodding, the panel agreed this month to more transparently account for the dozens of election law enforcement cases, a few of which have lingered for years.

Both Hunter and Weintraub expressed strong desire to reduce this backlog, although Hunter cautioned that the FEC sometimes has good reason to wait to rule on some cases, such as when federal courts are simultaneously grappling with a matter before the FEC. “There’s more than meets the eye with some of these, and it’s important to get the law right,” Hunter said.

At the FEC’s final meeting of 2017 on Thursday, the five commissioners unanimously agreed to ask Congress for a dozen different changes to federal law.

Among the recommendations: Forcing senators to file their campaign finance disclosures electronically — they still do so on paper — and prohibiting political committees from engaging in “potentially fraudulent fundraising and spending” that involves raising money with the promise of supporting candidates, then using almost none of it for that purpose. Congress routinely ignores the FEC’s annual legislative wish list, but Hunter and Weintraub urged that lawmakers give serious consideration to this year’s offering.

Also on the FEC’s agenda next year is tackling agency vacancies. It’s been four-and-a-half years since the agency last had a permanent general counsel to lead a legal department that represents about one-third of its 350-person workforce. The FEC’s inspector general, Lynne McFarland, retired in March without the commission replacing her.

Other senior-level positions that are vacant or filled on an “acting” basis include chief financial officer, accounting director, chief communications officer, deputy staff director for management and administration, associate general counsel for policy and deputy chief information officer.

Hunter said some “acting” staffers may become permanent. In the meantime, she added, she’ll work with Weintraub to look for other ways to make the agency, with an annual budget of just north of $70 million, more efficient — including whether some agency jobs should be changed or eliminated to better suit agency needs.

Goodman is also pressing for the agency to adjust its rules to reduce federal campaign finance reporting burdens on state and local political parties, a subject on which he thinks there may be agreement among commissioners.

Perhaps the most high-profile issue the FEC will tackle in 2018 is what to do about internet-based political communications.

A Russian company with suspected ties to the Russian government sponsored thousands of political issue ads. Given this, Weintraub, in particular, has insisted the FEC address alleged foreign influence in U.S. elections.

At the agency’s last public meeting of 2017, it took a modest step toward this goal, ruling after several hours of minutiae-parsing debate that conservative political activist John Pudner’s Take Back Action Fund political group must disclose who paid for Facebook ads it sponsors. Pudner, an advocate for increased campaign regulations, asked the commission for the ruling, which applied only to his organization and others that engage in political activity “indistinguishable” from that of Pudner’s group.

Hunter and Weintraub have agreed in principle to work with one another on a broader, if still limited, process in 2018 to craft regulations addressing online political ad disclaimers.

It’s a notable, even startling departure from not more than one year ago, when the notion of the FEC regulating any internet communication for any reason prompted death threats against then-Democratic Commissioner Ravel.

But the specter of an agency shutdown and shared goals on hold loomed even at the agency’s final meeting of 2017, as commissioners began taking what should have been a perfunctory vote naming Weintraub vice chairwoman for 2018.

Goodman, one of three Republican commissioners, left the meeting early. Weintraub chose to abstain instead of vote for herself.

The commission, therefore, couldn’t conduct a vote because it didn’t have four commissioners willing or able to cast votes. Goodman, hours later, ultimately cast a ballot for Weintraub, averting an open-ended delay — for now.

This article was co-published by Salon.

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