Federal Election Commission is now out of commission — that’s downright scary

Republican Matthew S. Petersen announced his resignation from the Federal Election Commission (FEC) this week. Ho hum news this is not. What it means is that the government agency charged with overseeing compliance with the federal campaign finance laws has been gutted. It now lacks the ability to meaningfully function in the run-up to the 2020 presidential election.

There are two primary takeaways here. The first is that this is not unwelcome news for conservatives — such as Senate Majority Leader Mitch McConnell (R-Ky.) — who believe that government oversight of federal campaigns is bad in general. McConnell led the years-long charge to kill the Bipartisan Campaign Reform Act of 2002 (BCRA), a feat that was largely accomplished by the Supreme Court with its 2009 decision in Citizens United v. Federal Election Commission. That case overruled on First Amendment grounds the statutory bans on soft or “issue-ad” money spent by corporations and unions close to presidential primaries and general elections.

With the FEC now out of commission, there is no longer a cop on the block to enforce the remaining rules-of-the-game aimed at enhancing fair and free elections in the United States. If no cop is around to pull over speed-demon drivers, the speed limits become meaningless. Translation? It’s the Wild West in federal-campaign-land, and individual voters are the ones who will suffer for it.

The second takeaway is that, once again, Congress is to blame for this travesty. 

The reason Congress is to blame has to do with the way that the FEC is structured. Congress — not the Constitution — creates federal agencies by statute. Those statutes also give agencies their job descriptions. Because Congress lacks the political will and expertise to do lawmaking across-the-board, it gives agencies the power to make laws for it. This handoff of the legislative baton occurs by statute. When agencies make laws pursuant to their statutory power, we call those laws “regulations.”

That the FEC can’t make laws anymore isn’t the problem. The problem is with enforcement. The technical job of the executive branch is to execute — or enforce — the law. The president is the ultimate federal cop-on-the-block in this regard. He enforces laws through the attorney general and his various cabinet-level appointees — “secretaries” of large federal departments. The president has the constitutional authority to appoint and, by implication, fire those folks at will. That way, they remain accountable to the electorate. If the voters don’t like what an agency is doing, they can replace the agencies’ boss, the president. 

In the 1930s, Congress thought it was a good idea to create some agencies that are quasi-insulated from the president. These are colloquially known as “independent agencies.” These agencies tend to have the word “commission” in their titles (think Federal Communications Commission, Securities and Exchange Commission, and so on).

Independent agencies are headed by panels rather than single individuals. The panels are usually comprised of a statutorily-mandated number of commissioners from each side of the political aisle, that is, a set number of Democrats and a set number of Republicans. Unlike with Department heads, incoming presidents generally can’t appoint all of the commissioners at once. They instead serve five to seven-year staggered terms, so that only certain seats come up during a certain president’s term. Independent agencies also make decisions by majority vote, and the statute creating them usually requires a quorum to conduct business.

Here’s the kicker: The president cannot fire these people at will. They can only be fired “for cause” — and the statute creating the commission normally sets forth the conditions that must exist before the president can fire a commissioner. 

This is precisely the model that led to the independent counsel law undergirding Kenneth W. Starr’s investigation of former President Clinton. Even though the president couldn’t fire that top law enforcement official (unlike, say a federal prosecutor or FBI agent), the Supreme Court has consistently upheld the constitutionality of statutory constraints on the president’s power to hire and fire executive branch officials that head independent agencies, including folks like Starr. 

The notion behind independent agencies is, well, independence from the political process. If law enforcement officials are structurally immune from political influence, the theory goes, they will make better decisions for the overall public good. If they are instead subject to the political and ideological whims of their White House boss, they will execute their power in biased ways that could hurt the broader public. 

The FEC was created by statute in 1974. It has six members — three from each political party — who are each supposed to serve a six-year term. Every two years, two seats come up for reappointment. A quorum of four is required for the FEC to act. With Petersen’s resignation, the FEC is down to three commissioners, which means it’s effectively out of business.

President Trump has shown no interest in changing that dynamic. By refusing to put more watchdogs on the campaign finance beat, the presidency has managed to shred the laws themselves.

Some might argue that this is not a big deal, because the FEC has long been notoriously feckless. It deadlocks 3-3 on purely political grounds anyway. If it enforces the laws against anyone, it targets the bit players — while the big fish swim away.

Still, the FEC managed to fine the 2008 Obama campaign $375,000 for violating laws requiring that it report certain information to the FEC. Broadly speaking, such laws are aimed at ensuring that the public is informed as to who is paying a campaign’s bill, so that voters can cast ballots accordingly.

Let’s not forget, too, the first part of special counsel Robert Mueller’s 448-page report detailing Russia’s systematic efforts to interfere with the 2016 presidential election — and his warning to Congress that those efforts are ongoing for the 2020 race. Even at its peak capacity, the FEC is hardly empowered to take on Putin’s democracy-crushing machinery. That’s Congress’s job — especially with a Putin-apologist in the White House. But Congress is not doing much on that front, either. Again, we have McConnell largely to thank for that roadblock.

If we are going to salvage a legitimate democracy for America, November 2020 is becoming increasingly urgent by the day. For now, one thing’s for sure: The FEC won’t be saving the day.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is also a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Her next book, “What You Need to Know About Voting—and Why,” is forthcoming with HarperCollins in July 2020. Follow her on Twitter @kim_wehle. 

This is the ninth piece in a series by Wehle on understanding the Constitution. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion, war power, the Supreme Court, presidential power, the presumption of innocence and the power of regulations.